How the appeals process works
Form of Appeal and Timeline for Appealing
Notice of Appeal
The statute recognizes that the FDAB hearing process will not be activated until “notice of appeal” is received. An appeal must be in writing, sent by certified mail, to the Superintendent of Public Instruction with a copy to the superintendent of the school district. The notice of appeal must also contain a “brief statement giving the reasons for the appeal.”
Timeliness of appeal
An appeal from a “dismissal” must be made “within 10 days, as provided for in ORS 174.120, after receipt of notice of the district school board’s decision.” Appeal of a contract non-extension must be within 15 days “after receipt of notice of nonextension of a contract.” Missing an appeal deadline is jurisdictional.
Scheduling concerns
The statute states that hearings shall be held “within 100 days of the receipt by the teacher of the notice of dismissal or of the statement of reasons in the case of contract non-extension.”
The statute goes on to state that “[n]o later than 140 days after the filing of an appeal, consistent with due process,” the panel “shall prepare and send a final decision.” The proviso “consistent with due process” permits the panel additional time, as necessary, to confer, research and then prepare the Order.
Finally, the statute expressly authorizes that FDAB panels “may take all reasonable steps to require the parties to conclude the hearing in an expeditious manner.” In recognition of the tight timeframes, the FDAB rules contain an express duty for the parties to “cooperate to the fullest extent possible” prior to and during the hearing.
There has been a long accepted and established practice among and between the attorneys representing appellants, school districts and the FDAB to cooperate in scheduling hearings for days and times that meet the professional needs of all the parties. Historically, the FDAB has not required strict compliance with timelines when there is mutual agreement to extend timelines.
Pre-hearing Discovery
Parties are entitled before the hearing to request full access to all “physical evidence” related to the action.
Teachers and administrators are entitled by statute to all information in their personnel file.
In the case of “contract nonextension” within 10 days of receipt of the notice of appeal the decision the district is required to provide the teacher “a list of witnesses and documents upon which the district will rely at hearing.” The appellant is then required to give the same information “at least 10 days prior to hearing”. (italics added).
The FDAB administrative rules do not permit forms of civil discovery including depositions, interrogatories or requests for admission.
Hearing Procedures
In general
The statute requires “a contested case hearing under ORS 183.310 to 183.550” and the parties “have the right to be present and be heard, to be represented by counsel, to present evidence and cross-examine adverse witnesses and offer evidence.” The basic outline of case presentation is contained in the Board’s administrative rules. See OAR 586-030-0060.
Prior to the hearing
The panel elects a chairperson. The chair makes sure both sides are ready to proceed and then reads a preliminary statement announcing the name of the case, introducing the panel members, court reporter, board counsel and attorneys for the parties, and describing the hearing process. Preliminary issues are handled before the start of the hearing on the merits (e.g., will the hearing be open or closed, will witnesses be sequestered, are there any motions to exclude evidence?).
The hearing on the merits
- The district may make an opening statement; the appellant may then make an opening statement, or reserve opening statement until the beginning of the appelant's case.
- The district may present evidence in support of the content of the written notice of dismissal or contract non-extension.
- The appeland may present evidence relevant to or rebutting the matters contained in the written notice, along with any defense.
- The district may then present evidence in rebuttal to appelant's evidence.
- The appellant may then present evidence in sur-rebuttal to the district's rebuttal evidence.
- The district may make closing argument, followed by the appellant. The district may reserve some time for the final (rebuttal) argument.
- The panel chairperson will then close the hearing.
Use of court reporter
The statute requires that the Board Panels be provided “appropriate professional and other special assistance reasonably necessary to conduct a hearing.” The Board’s administrative rules interpret this to allow use of a court reporter or tape recorder to preserve the hearing record.
Duty of cooperation
With the tight timeframes for conducting hearings and issuing final orders, the administrative rules place on all parties “the affirmative obligation to cooperate to the fullest extent possible in advance of and during hearing.”
Burden of proof
The burden of proof is placed on the party who must ultimately prove the particular point of contention. In dismissal cases, this means the school district carries the burden of going forward first with its evidence and has the burden of proving the facts sufficient to support the alleged statutory cause(s) for dismissal by a preponderance of evidence.
Standard of proof
The statute does not articulate the standard of proof. The administrative rule requires that all matters be proven by a preponderance of the evidence standard.
The hearing is “private” unless the “teacher” requests that it be public. This issue should be resolved before the hearing on the merits begins.
The Panel’s Decision
After the hearing, the panel members meet and discuss their thoughts on the case. Only evidence presented at the hearing may be considered in reaching the decision. The panel must come to a decision. Sometimes only two panel members will agree on the decision and the third member will dissent.
Methodology of decision
The statute requires a specific form of analysis by the panel. It is essentially a three part inquiry under ORS 342.905(6): (1) First, the panel must determine whether the “facts relied upon” are “true and substantiated. (2) Second, if the facts are true, the panel must decide whether they “adequately justify the statutory grounds cited.” (3) Third, the panel shall not reverse the decision of the school board where the facts are true and substantiated “unless it determines * * * for reasons stated with specificity in its findings and order, that the [action] was unreasonable, arbitrary or clearly an excessive remedy.”
If the panel finds the facts are not true and substantiated or are not adequate to support the statutory grounds, the employee “shall be reinstated.” Where reinstatement is ordered, the statute provides that the employee shall receive “such back pay as ordered by the panel.”
The statutory scheme gives discretion to the elected school board in making assessments on employment status where the facts are true and substantiated. Assuming the facts alleged by the district are found to be true, substantiated and adequate to justify the grounds cited, reversal is limited to those situations where the panel can articulate, “for reasons stated with specificity” that the action was “unreasonable, arbitrary, or clearly an excessive remedy.” The FDAB historically has given deference to district dismissal decisions if the board finds that the facts relied upon by the district to dismiss are “true and substantiated.”
Form of Final Order
The form of the final order must conform to the requirements of the administrative procedures act. It must be in writing and include rulings on any motions or objections raised in the course of the proceeding, findings of fact, conclusions of law, an order, and where applicable, a dissenting opinion. Before the order is put in final form for signature, a draft will be sent to each panel member for review. Once it is approved and signed by the panel, the final written decision must be served personally or by certified mail to the parties or their legal counsel. The original must be submitted to the Executive Secretary.
Reconsideration Petitions
A party may petition for reconsideration within 21 days of the date of the Order. By administrative rule there must be “specific ground(s)” and the panel will not consider new matters nor objections not preserved. The opponent has 14 days to object to the petition. If the panel does not act on the petition by the 60th day following the date it was filed, the petition is deemed denied.
Appeal rights
The parties may appeal to the Court of Appeals in conformance with the timelines contained in ORS 183.480, which requires filing within sixty (60) days from the date of service of the order.