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SEE YOU IN COURT! - April 2014

CABE Journal

April 2014

On the rare evenings that he is not out on Board business, Bob Bombast, veteran member of the Nutmeg Board of Education, keeps a close eye on his 1,000 Facebook friends. Bob was surprised one evening to read on Tom Teacher’s Facebook page that his principal had denied his request for personal leave to serve as a chaperone in a neighboring school district for his fifth-grade son’s trip to Nature’s Classroom.

On his “wall,” Tom snidely questioned Mr. Principal’s competence, and he vowed to file a grievance to get “justice,” i.e. three days off with pay. Bob was intrigued.

Bob called Tom right up at home, “Tom, I was surprised to read your posts about your request for personal leave. Have you filed your grievance yet?”

Tom was pleased to hear from a Board member, and he unloaded on Bob with vitriol about Peter Principal’s mismanagement. He explained that other teachers were being granted leave for all sorts of things, but when he asked for three days of personal leave, Mr. Principal slammed the lid of the cookie jar down on his fingers. Bob wasn’t so sure that Tom’s analogy was apt, but he did question Mr. Principal’s decision. He was especially moved when Tom told him that he was recently divorced, and his doing Nature’s Classroom with his son would be a great way for the two to bond. At the end of the call, Bob assured Tom that he would get a full and fair hearing from the Board.

Sure enough, the next day Mr. Superintendent notified the members of the Nutmeg Board of Education through confidential memorandum of the grievance hearing concerning Tom Teacher. There, Mr. Superintendent described the facts underlying the grievance, and he told the Board members that Tom had rejected his offer at Level Two to let Tom take the time off without pay.

The hearing itself was uneventful. Tom sat quietly, wearing a tie for the first time in years, as Bruno, staff representative for the Nutmeg Union of Teachers, argued that Mr. Superintendent had violated the contract by arbitrarily and capriciously denying Tom his contractual right to personal leave “for matters that cannot be scheduled with reasonable convenience outside the work day.”

“I ask you!” Bruno thundered. “How could Tom reschedule Nature’s Classroom? Tom has the right to personal leave. Period. I rest my case!”

After Tom and Bruno left the room, the Board began to deliberate. Bob started right in on Mr. Superintendent . . .

“How could you do that to poor Tom? He and his son are hurting from the recent divorce, and he should be able to be a chaperone for Nature’s Classroom!”

Fellow Board member Mal Content raised an eyebrow. “Bob, how did you know about Tom’s divorce? I didn’t hear anything about that at the hearing!”

Bob shrugged his shoulders. “I may have talked to Tom a little, but so what?”
Mal jumped on that. “Mr. Chairperson, it is obvious that Bob is biased and should not participate in this grievance hearing. I move that Bob not be allowed to participate in this grievance hearing.”

Should Bob recuse himself? Can he participate despite his talking to Tom? 

                                                        *                     *                     *
Bob’s actions were certainly over the top, but there is no legal basis for excluding him from the hearing.

Sometimes board members must be impartial, but this was not such a time. For example, when board members hear student disciplinary matters, the affected students have a due process right to have an impartial decision-maker. Similarly, boards of education must act as impartial judges when making decisions on eligibility for school privileges (residency cases) or making decisions in nonrenewal or termination hearings concerning teachers. In each of these cases, as a matter of due process board members must decide the case independently of the superintendent, and they must decide the matter impartially based on the evidence presented at the hearing.

By contrast, grievance hearings are an extension of the collective bargaining process. Due process and good faith bargaining are two very different concepts, and when hearing grievances, boards of education need not act as impartial judges.

Some boards of education do not understand this fact, and they conduct grievance hearings like court proceedings. Some even exclude the superintendent (and his/her lawyer, if any) during their deliberations. Boards should never do that. The superintendent acts in collective bargaining matters as the agent of the board of education, and the board has every right to talk to its agent, especially if it is considering reversing or modifying action the superintendent previously took.

Clear communication with the superintendent is also important because grievance decisions set precedent for interpreting the contract. Here, for example, a decision in favor of Tom here would make it between difficult and impossible for administrators to deny future requests for personal leave. Therefore, boards of education have the right and responsibility to consult with their superintendent and other administrators before making grievance decisions.

In any event, it is clear that Bob overstepped here. The superintendent is responsible for administering the contract. Board members should let the superintendent do his or her job, and they should not talk privately with teachers about grievances that the Board will be hearing. Bob’s secret conversation with Tom may have encouraged Tom to hang tough and to reject Mr. Superintendent’s offer at Level Two to permit him to take unpaid days to serve as a chaperone for Nature’s Classroom.

Grievance hearings also raise issues under the Freedom of Information Act. The grievance itself is a record subject to public disclosure. However, grievance responses are not public until the grievance is resolved, because interim responses are considered collective bargaining strategy. Similarly, a grievance hearing is a public meeting. A Board-level grievance hearing should be posted, and the hearing can be held in executive session only if there is an applicable executive session privilege, such as discussion of a teacher’s employment (provided that the teacher does not require that the discussion be held in open session). However, once the hearing is over the Board may adjourn its public meeting, but continue to talk about how to resolve the grievance. Such deliberations are collective bargaining strategy discussions that the Board can conduct privately.

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