Final Text
Part I
Definitions
8VAC20-90-10. Definitions.
The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise.
"Business day" means, in accordance with §
22.1-312 of the Code of Virginia, any day that the relevant school board
office is open.
"Days" means calendar days unless a different
meaning is clearly expressed in this procedure. Whenever any period of time
fixed by this procedure shall expire the last day for performing an act
required by this procedure falls on a Saturday, Sunday, or legal holiday,
the period of time for taking action under this procedure shall be extended
to the act may be performed on the next day if it that
is not a Saturday, Sunday, or legal holiday.
"Dismissal" means the dismissal of any teacher
within the term of such teacher's contract and the nonrenewal of a contract
of a teacher on a continuing contract.
"Grievance" means, for the purpose of Part II
(8VAC20-90-20 et seq.), a complaint or a dispute by a teacher relating to his
employment, including but not necessarily limited to the application or
interpretation of personnel policies, rules and regulations, ordinances, and
statutes; acts of reprisal as a result against a teacher for filing
or processing a grievance, or participating as a witness in any step, meeting,
or hearing related to a grievance; or complaints of discrimination on the
basis of race, color, creed, political affiliation, handicap, age, national
origin, or sex. "Grievance" means, for the purposes of Part III
(8VAC20-90-60 et seq.), a complaint or a dispute involving a teacher relating
to his employment involving dismissal or placing on probation. The term
"grievance" shall not include a complaint or dispute by a teacher
relating to the establishment and revision of wages or salaries, position
classifications or general benefits; suspension of a teacher or nonrenewal of
the contract of a teacher who has not achieved continuing contract status; the
establishment or contents of ordinances, statutes or personnel policies,
procedures, rules and regulations; failure to promote; or discharge,
layoff, or suspension from duties because of decrease in enrollment, decrease
in a particular subject, enrollment in or abolition of a particular
subject, or insufficient funding; hiring, transfer, assignment and
retention of teachers within the school division; suspension from duties in
emergencies; or the methods, means and personnel by which the school
division's operations are to be carried on; or coaching or extracurricular
activity sponsorship. While these management rights are reserved to the
school board, failure to apply, where applicable, these rules, regulations,
policies, or procedures as written or established by the school board is
grievable.
"Hearing officer" means an impartial hearing officer from outside the school division who possesses some knowledge and expertise in public education and education law and who is capable of presiding over an administrative hearing.
"Personnel file" means, for the purposes of Part III (8VAC20-90-60 et seq.), any and all memoranda, entries or other documents included in the teacher's file as maintained in the central school administration office or in any file regarding the teacher maintained within a school in which the teacher serves.
"Probation" means a period not to exceed one year
during which time it shall be the duty of the teacher to remedy those
deficiencies which give rise to the probationary status.
"Teacher" or "teachers" means, for the
purposes of Part II (8VAC20-90-20 et seq.), all employees of the school
division involved in classroom instruction and all other full-time employees of
the school division except those employees classified as supervising employees.
"Teacher" means, for the purposes of Part III (8VAC20-90-60 et seq.),
all regularly certified licensed professional public school
personnel employed by any school division under a written contract as
provided by § 22.1-302 of the Code of Virginia, by any school division as
a teacher or as an assistant principal, principal, or supervisor of
classroom teachers but excluding all superintendents as provided by §
22.1-294 of the Code of Virginia.
"Shall file," "shall respond in writing,"
or "shall serve written notice" means the document is either
delivered personally to the grievant or office of the proper school board
representative or is mailed by registered or certified mail, return receipt
requested, and postmarked within the time limits prescribed by this procedure to
the grievant or office of the proper school board representative.
"Supervisory employee" means any person having authority in the interest of the board (i) to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees; and (ii) to direct other employees; or (iii) to adjust the grievance of other employees; or (iv) to recommend any action set forth in clause (i), (ii), or (iii) above; provided that the authority to act as set forth in clause (i), (ii), (iii), or (iv) requires the exercise of independent judgment and is not merely routine and clerical in nature.
"Written grievance appeal" means a written or typed
statement describing the event or action complained of, or the date of
the event or action complained of, and a concise description of those
policies, procedures rules, regulations, ordinances or
statutes upon which the teacher bases his claim. The grievant shall specify
what he expects to obtain through use of the grievance procedure. A statement
written grievance appeal shall be written upon on forms
prescribed by the Board of Education and supplied by the local school board.
Part II
Grievance Procedure
8VAC20-90-20. Purpose of Part II of this grievance procedure.
The purpose of Part II of the Procedure for Adjusting
Grievances is to provide an orderly procedure for resolving disputes concerning
the application, interpretation, or violation of any of the provisions of local
school board policies, rules and regulations as they affect the work of
teachers, other than dismissals or probation. An equitable solution of grievances
should be secured at the most immediate administrative level. The procedure
should not be construed as limiting the right of any teacher to discuss any
matter of concern with any member of the school administration, nor should the
procedure be construed to restrict any teacher's right to seek, or the school
division administration's right to provide, review of complaints that are not
included within the definition of a grievance. Nothing in this procedure shall
be interpreted to limit a school board's exclusive final authority over the
management and operation of the school division.
8VAC20-90-30. Grievance procedure.
Recognizing that grievances should be begun begin
and should be settled promptly, a grievance must be initiated within 15
business days following either the event giving rise to the grievance, or
within 15 business days following the time when the employee knew or reasonably
should have known of its occurrence. Grievances shall be processed as follows:
1. Step 1 -- Informal. The first step shall be an informal conference between the teacher and his immediate supervisor (which may be the principal). The teacher shall state the nature of the grievance, and the immediate supervisor shall attempt to adjust the grievance. It is mandatory that the teacher present the grievance informally prior to proceeding to Step 2.
2. Step 2 -- Principal. If for any reason the grievance is not
resolved informally in Step 1 to the satisfaction of the teacher, the teacher
must perfect his grievance by filing said grievance in writing a
written grievance appeal on the required form within 15 business days
following the event giving rise to the grievance, or within 15 business days
following the time when the employee knew or reasonably should have known of
its occurrence, specifying on the form the specific relief expected. Regardless
of the outcome of Step 1, if a written grievance appeal is not, without
just cause, filed within the specified time, the grievance will be barred.
A meeting shall be held between the principal (or his designee or both) and the teacher (or his designee or both) within five business days of the receipt by the principal of the written grievance. At such meeting the teacher or other party involved, or both, shall be entitled to present appropriate witnesses and to be accompanied by a representative other than an attorney. The principal (or his designee or both) shall respond in writing within five business days following such meeting.
The principal may forward to the teacher within five days from the receipt of the written grievance a written request for more specific information regarding the grievance. The teacher shall file an answer thereto within 10 business days, and the meeting must then be held within five business days thereafter.
3. Step 3 -- Superintendent. If the grievance is not settled to
the teacher's satisfaction in Step 2, the teacher can proceed to Step 3 by
filing a written notice of appeal with the superintendent, accompanied by the
original written grievance appeal form within five business days after
receipt of the Step 2 answer (or the due date of such answer). A meeting shall
then be held between the superintendent (or his designee or both) and the
teacher (or his designee or both) at a mutually agreeable time within five
business days. The superintendent or designee may make a written request for
more specific information from the teacher, but only if such information was
not requested in Step 2. The teacher shall file an answer to such request
within 10 business days, and the meeting shall be held within five business
days of the date on which the answer was received. At such meeting both the
superintendent and the teacher shall be entitled to present witnesses and to be
accompanied by a representative who may be an attorney. A representative may
examine, cross-examine, question, and present evidence on behalf of a grievant
or the superintendent without violating the provisions of § 54.1-3904 of the
Code of Virginia. If no settlement can be reached in said meeting, the
superintendent (or his designee) shall respond in writing within five business
days following such meeting. The superintendent or designee may make a
written request for more specific information from the teacher, but only if
such was not requested in Step 2. Such request shall be answered within 10
business days, and the meeting shall be held within five business days of the
date on which the answer was received. If the grievance is not resolved to
the satisfaction of the teacher in Step 3, the teacher may elect to have a
hearing by a fact-finding panel, as provided in Step 4, or after giving proper
notice may request a decision by the school board pursuant to Step 5
4.
4. Step 4 -- Fact-finding panel. In the event the grievance
is not settled upon completion of Step 3, either the teacher or the school
board may elect to have a hearing by a fact-finding panel prior to a decision
by the school board, as provided in Step 4. If the teacher elects to proceed to
Step 4, he must notify the superintendent in writing of the intention to
request a fact-finding panel and enclose a copy of the original grievance form
within five business days after receipt of a Step 3 answer (or the due date of
such answer). If the school board elects to proceed to a fact-finding panel,
the superintendent must serve written notice of the board's intention upon the
grievant within 15 business days after the answer provided by Step 3.
a. Panel. Within five business days after the receipt by
the division superintendent of the request for a fact-finding panel, the
teacher and the division superintendent shall each select one panel member from
among the employees of the school division other than an individual involved in
any previous phase of the grievance procedure as a supervisor, witness, or
representative. The two panel members so selected shall within five business
days of their selection select a third impartial panel member.
b. Selection of impartial third member. In the event that
both panel members are unable to agree upon a third panel member within five
business days, both members of the panel shall request the chief judge of the
circuit court having jurisdiction of the school division to furnish a list of
five qualified and impartial individuals from which one individual shall be
selected by the two members of the panel to serve as the third member. The
individuals named by the chief judge may reside either within or outside the
jurisdiction of the circuit court, be residents of the Commonwealth of
Virginia, and in all cases shall possess some knowledge and expertise in public
education and education law and shall be deemed by the judge capable of
presiding over an administrative hearing. Within five business days after
receipt by the two panel members of the list of fact finders nominated by the
chief judge, the panel members shall meet to select the third panel member.
Selection shall be made by alternately deleting names from the list until only
one remains. The panel member selected by the teacher shall make the first
deletion. The third impartial panel member shall chair the panel. No elected
official shall serve as a panel member. Panel members shall not be parties to,
or witnesses to, the matter grieved. With the agreement of the teacher's and
division superintendent's panel members, the impartial panel member shall have
the authority to conduct the hearing and make recommendations as set forth
herein while acting as a hearing officer.
The Attorney General shall represent personally or through
one of his assistants any third impartial panel member who shall be made a
defendant in any civil action arising out of any matter connected with his
duties as a panel member. If, in the opinion of the Attorney General, it is
impracticable or uneconomical for such legal representation to be rendered by
him or one of his assistants, he may employ special counsel for this purpose,
whose compensation shall be fixed by the Attorney General and be paid out of
the funds appropriated for the administration of the Department of Education.
c. Holding of hearing. The hearing shall be held by the
panel within 30 business days from the date of the selection of the final panel
member. The panel shall set the date, place, and time for the hearing and shall
so notify the division superintendent and the teacher. The teacher and the
division superintendent each may have present at the hearing and be represented
at all stages by a representative or legal counsel.
d. Procedure for fact-finding panel.
(1) The panel shall determine the propriety of attendance
at the hearing of persons not having a direct interest in the hearing, provided
that, at the request of the teacher, the hearing shall be private.
(2) The panel may ask, at the beginning of the hearing, for
statements from the division superintendent and the teacher clarifying the
issues involved.
(3) The parties shall then present their claims and
evidence. Witnesses may be questioned by the panel members, the teacher and the
division superintendent. The panel may, at its discretion, vary this procedure,
but shall afford full and equal opportunity to all parties to present any
material or relevant evidence and shall afford the parties the right of
cross-examination.
(4) The parties shall produce such additional evidence as
the panel may deem necessary to an understanding and determination of the
dispute. The panel shall be the judge of the relevancy and materiality of the
evidence offered. All evidence shall be taken in the presence of the panel and
of the parties.
(5) Exhibits offered by the teacher of the division
superintendent may be received in evidence by the panel and, when so received,
shall be marked and made a part of the record.
(6) The facts found and recommendations made by the panel
shall be arrived at by a majority vote of the panel members.
(7) The hearing may be reopened by the panel, on its own motion
or upon application of the teacher or the division superintendent, for good
cause shown, to hear after-discovered evidence at any time before the panel's
report is made.
(8) The panel shall make a written report which shall
include its findings of fact and recommendations, and shall file it with the
members of the school board, the division superintendent, and the teacher, not
later than 30 business days after the completion of the hearing.
(9) A stenographic record or tape recording of the
proceedings shall be taken. However, in proceedings concerning grievances not
related to dismissal or probation, the recording may be dispensed with entirely
by mutual consent of the parties. In such proceedings, if the recording is not
dispensed with the two parties shall share equally the cost of the recording.
If either party requests a transcript, that party shall bear the expense of its
preparation.
In cases of dismissal or probation, a record or recording
of the proceedings shall be made and preserved for a period of six months. If
either the teacher or the school board requests that a transcript of the record
or recording be made at any time prior to expiration of the six-month period,
it shall be made and copies shall be furnished to both parties. The school
board shall bear the expense of the recording and the transcription.
(10) The recommendations and findings of fact of the panel
submitted to the school board shall be based exclusively upon the evidence
presented to the panel at the hearing. No panel member shall conduct an
independent investigation involving the matter grieved.
e. Expenses.
(1) The teacher shall bear his own expenses. The school
board shall bear the expenses of the division superintendent. The expenses of
the panel shall be borne one half by the school board and one half by the
teacher.
(2) The parties shall set the per diem rate of the panel.
If the parties are unable to agree on the per diem, it shall be fixed by the
chief judge of the circuit court. No employee of the school division shall
receive such per diem for service on a panel during his normal business hours
if he receives his normal salary for the period of such service.
(3) Witnesses who are employees of the school board shall
be granted release time if the hearing is held during the school day. The
hearing shall be held at the school in which most witnesses work, if feasible.
f. Right to further hearings. Following a hearing by a
fact-finding panel, the teacher shall not have the right to a further hearing
by the school board as provided in subdivision 5 c of this section. The school
board shall have the right to require a further hearing in any grievance
proceeding as provided in subdivision 5 c of this section.
5. 4. Step 5 4 -- Decision by the
school board.
a. If a teacher elects to proceed directly to a
determination before request a decision by the school board as
provided for in Step 5 3, he must notify the superintendent in
writing of the intention to appeal directly to make the request of
the board, of the grievance alleged, and the relief sought within five
business days after receipt of the answer as required in Step 3 or the due date
thereof. Upon receipt of such notice, the school board may elect to have a
hearing before a fact-finding panel, as indicated in Step 4, by filing a
written notice of such intention with the teacher within 10 business days of
the deadline for the teacher's request for a determination by the school board
the board may hold a hearing on the grievance, may elect to have the hearing
conducted by a hearing officer appointed by the school board consistent with
the procedures in § 22.1-311 of the Code of Virginia, or may make its
determination on the basis of the written evidence presented by the teacher and
the recommendation of the superintendent.
b. In the case of a hearing before a fact-finding panel,
the school board shall give the grievant its written decision within 30 days
after the school board receives both the transcript of such hearing, if any,
and the panel's finding of fact and recommendations unless the school board
proceeds to a hearing under subdivision 5 c of this section. The decision of
the school board shall be reached after considering the transcript, if any; the
findings of fact and recommendations of the panel; and such further evidence as
the school board may receive at any further hearing which the school board
elects to conduct.
c. In any case in which a hearing before a fact-finding
panel is held in accordance with Step 4, the local school board may conduct a
further hearing before such school board.
(1) The local school board shall initiate such hearing by
sending written notice of its intention to the teacher and the division
superintendent within 10 days after receipt by the board of the findings of fact
and recommendations of the fact-finding panel and any transcript of the panel
hearing. Such notice shall be provided upon forms to be prescribed by the Board
of Education and shall specify each matter to be inquired into by the school
board.
(2) In any case where such further hearing is held by a
school board after a hearing before the fact-finding panel, the school board
shall consider at such further hearing the transcript, if any; the findings and
recommendations of the fact-finding panel; and such further evidence including,
but not limited to, the testimony of those witnesses who have previously
testified before the fact-finding panel as the school board deems may be
appropriate or as may be offered on behalf of the grievant or the administration.
(3) The further hearing before the school board shall be
set within 30 days of the initiation of such hearing, and the teacher must be
given at least 15 days written notice of the date, place, and time of the
hearing.
b. In any case in which the school board elects to hold a hearing or elects to have a hearing officer conduct the hearing, the hearing shall be set within 30 days of the school board's receipt of the notice required by subdivision 4 a of this section (Step 4a), and the teacher must be given at least 15 days' written notice of the date, time, and place of the hearing.
The teacher and the division superintendent may be represented
by legal counsel or other representatives. The hearing before the school
board shall be private, unless the teacher requests a public hearing. The
school board or the hearing officer, as the case may be, shall establish
the rules for the conduct of any the hearing before it.
Such rules shall include the opportunity for the teacher and the division
superintendent to make an opening statement and to present all material or
relevant evidence, including the testimony of witnesses and the right of all
parties or their representatives to cross-examine the witnesses. Witnesses may
be questioned by the school board or the hearing officer.
The In the case of a hearing conducted by the school
board, the school board's attorney, assistants, or representative, if he,
or they, represented a participant in the prior proceedings, the
grievant, the grievant's attorney, or representative and,
notwithstanding the provisions of § 22.1-69 of the Code of Virginia, the
superintendent shall be excluded from any executive session of the school board
which that has as its purpose reaching a decision on the
grievance. However, immediately after a decision has been made and publicly
announced, as in favor of or not in favor of the grievant, the school board's
attorney or representative, and the superintendent, may join the school board
in executive session to assist in the writing of the decision.
A stenographic record or tape recording of the proceedings
hearing shall be taken. However, in proceedings concerning grievances
not related to dismissal or probation, the recording may be dispensed with
entirely by mutual consent of the parties. In such proceedings, if If
the recording is not dispensed with, the two parties shall share the cost of
the recording equally, and if either party requests a transcript, that party
shall bear the expense of its preparation.
In the case of dismissal or probation, a record or
recording of the proceedings shall be made and preserved for a period of six
months. If either the teacher or the school board requests that a transcript of
the record or recording be made at any time prior to the expiration of the six-month
period, it shall be made and copies shall be furnished to both parties. The
school board shall bear the expense of the recording and the transcription.
c. In the event of a hearing conducted by a hearing officer, the recommendation of the hearing officer shall be based exclusively upon the evidence presented at the hearing. Upon the hearing officer's own motion or upon application by either party to the grievance, the hearing officer may reopen the hearing for the purpose of hearing after-discovered evidence upon a finding of good cause by the hearing officer at any time before his recommendation is due. The hearing officer shall transmit his written recommendation and a record or recording of the hearing to the school board as soon as practicable and no more than 10 business days after the hearing.
d. In the event of a hearing by a hearing officer, the school board may make its decision upon the record or recording of such hearing or the school board may elect to conduct a further hearing to receive additional evidence. The school board must hold such further hearing as soon as practicable and must give written notice of the time and place of such further hearing to the division superintendent and the teacher within 10 business days after the board received the record or recording of the initial hearing. The notice must specify each matter to be inquired into by the school board. The school board shall determine the procedure to be followed at such further hearing.
e. In the event of a hearing before the school board, the school board shall give the teacher its written decision as soon as practicable and no more than 30 days after the hearing. The decision of the school board shall be reached after considering the evidence and information presented at the school board hearing.
f. In the event of a hearing before a hearing officer followed by a further hearing by the school board, the school board shall give the teacher its written decision as soon as practicable and no more than 30 days after such further hearing. The decision of the school board shall be reached after considering the record or recording of the initial hearing, the recommendations of the hearing officer, and the evidence and information presented at the further hearing before the school board.
g. In the event of a hearing before a hearing officer in cases in which no further hearing is conducted by the school board, the school board shall give the teacher its written decision as soon as practicable and no more than 30 days after receiving the record or recording of the hearing. The decision of the school board shall be reached after considering the record or recording of the hearing and the recommendations of the hearing officer.
(4) The decision of the school board shall be based solely on
the transcript, if any; the findings of fact and recommendations of the
fact-finding panel; and any evidence relevant to the issues of the original
grievance procedure at the school board hearing in the presence of each party.
The school board shall give the grievant its written decision within 30 days
after the completion of the hearing before the school board. In the event the
school board's decision is at variance with the recommendations of the
fact-finding panel, the school board's written decision shall include the
rationale for the decision.
d. In any case where a hearing before a fact-finding panel
is not held, the board may hold a separate hearing or may make its
determination on the basis of the written evidence presented by the teacher and
the recommendation of the superintendent.
e. h. The school board shall retain its
exclusive final authority over matters concerning employment and the
supervision of its personnel.
8VAC20-90-40. Grievability.
A. Initial determination of grievability. Decisions regarding
whether a matter is grievable shall be made by the school board at the request
of the division superintendent administration or grievant and such
decision shall be made within 10 business days of such request. The school
board shall reach its decision only after allowing the division superintendent
administration and the grievant opportunity to present written or oral
arguments regarding grievability. The decision as to whether the arguments
shall be written or oral shall be at the discretion of the school board. Decisions
shall be made within 10 business days of such request. Such determination
of grievability shall be made subsequent to the reduction of the grievance to
writing but prior to any panel or board hearing by the board or a
hearing officer, or the right to such determination shall be deemed to have
been waived. Failure of the school board to make such a determination within
such a prescribed 10-business-day period shall entitle the grievant to advance
to the next step as if the matter were grievable.
B. Appeal of determination on grievability.
1. Decisions of the school board may be appealed to the circuit court having jurisdiction in the school division for a hearing on the issue of grievability.
a. Proceedings for a review of the decision of the school board shall be instituted by filing a notice of appeal with the school board within 10 business days after the date of the decision and giving a copy thereof to all other parties.
b. Within 10 business days thereafter, the school board shall transmit to the clerk of the court to which the appeal is taken, a copy of its decision, a copy of the notice of appeal, and the exhibits. The failure of the school board to transmit the record within the time allowed shall not prejudice the rights of the grievant. The court may, on motion of the grievant, issue a writ of certiorari requiring the school board to transmit the records on or before a certain date.
c. Within 10 business days of receipt by the clerk of such record, the court, sitting without a jury, shall hear the appeal on the record transmitted by the school board and such additional evidence as may be necessary to resolve any controversy as to the correctness of the record. The court may, in its discretion, receive such other evidence as the ends of justice require.
d. The court may affirm the decision of the school board or may reverse or modify the decision. The decision of the court shall be rendered not later than 15 days from the date of the conclusion of the court's hearing.
Part III
Procedure for Dismissals or Placing on Probation
8VAC20-90-60. Dispute resolution.
This Part III of the Procedure for Adjusting Grievances
adopted by the Board of Education in accordance with the statutory mandate of
Article 3 (§ 22.1-306 et seq.) of Chapter 15 of Title 22.1 of the Code
of Virginia and the Standards of Quality for school divisions, Chapter 13.1 (§
22.1-253.13:1 et seq.) of Title 22.1 of the Code of Virginia, is to provide an
orderly procedure for the expeditious resolution of disputes involving the
dismissal or placing on probation of any teacher.
8VAC20-90-70. Procedure for dismissals or placing on
probation.
A. Notice to teacher of recommendation for dismissal or
placing on probation.
1. In the event a division superintendent determines to
recommend dismissal of any teacher, or the placing on probation of a teacher
on continuing contract, written notice shall be sent to the teacher on
forms to be prescribed by the Board of Education notifying him of the
proposed dismissal [ , ] or placing on probation,
and informing the teacher that within 15 10 business days after
receiving the notice, the teacher may request a hearing before the school board,
or before a fact-finding panel as hereinafter set forth or, at the
option of the school board, a hearing officer appointed by the school board, as
provided in § 22.1-311 of the Code of Virginia.
2. During such 15-day 10-business-day period and
thereafter until a hearing is held in accordance with the provisions herein, if
one is requested by the teacher, the merits of the recommendation of the
division superintendent shall not be considered, discussed, or acted upon by
the school board except as provided for herein.
3. At the request of the teacher, the superintendent shall
provide the reasons for the recommendation in writing or, if the teacher
prefers, in a personal interview. In the event a teacher requests a hearing
pursuant to § 22.1-311 or § 22.1-312 of the Code of Virginia, the
division superintendent shall provide, within 10 days of the request, the
teacher, or his representative, with the opportunity to inspect and copy his
personnel file and all other documents relied upon in reaching the decision to
recommend dismissal or probation. Within 10 days of the request of the
division superintendent, the teacher, or his representative, shall provide the
division superintendent with the opportunity to inspect and copy the documents
to be offered in rebuttal to the decision to recommend dismissal or
probation. The division superintendent and the teacher or his
representative shall be under a continuing duty to disclose and produce any
additional documents identified later that may be used in the respective
parties' cases-in-chief. The cost of copying such documents shall be paid by
the requesting party.
4. Upon a timely request for a hearing, the school board or, at the school board's option, a hearing officer appointed by the school board shall set a hearing within 15 days of the request and the teacher shall be given at least five days' written notice of the time and the place of the hearing.
B. Fact-finding panel. Within 15 days after the teacher
receives the notice referred to in subdivision A 1 of this section, either the
teacher, or the school board, by written notice to the other party upon a form
to be prescribed by the Board of Education, may elect to have a hearing before
a fact-finding panel prior to any decision by the school board.
1. Panel. Within five business days after the receipt by the
division superintendent of the request for a fact-finding panel, the teacher
and the division superintendent shall each select one panel member from among
the employees of the school division other than an individual involved in the
recommendation of dismissal or placing on probation as a supervisor, witness,
or representative. The two panel members so selected shall within five business
days of their selection select a third impartial panel member.
2. Selection of impartial third member. In the event that
both panel members are unable to agree upon a third panel member within five
business days, both members of the panel shall request the chief judge of the
circuit court having jurisdiction of the school division to furnish a list of
five qualified and impartial individuals from which list one individual shall
be selected by the two members of the panel as the third member. The
individuals named by the chief judge may reside either within or without the
jurisdiction of the circuit court, be residents of the Commonwealth of
Virginia, and in all cases shall possess some knowledge and expertise in public
education and education law, and shall be deemed by the judge capable of
presiding over an administrative hearing. Within five business days after
receipt by the two panel members of the list of fact finders nominated by the
chief judge, the panel members shall meet to select the third panel member.
Selection shall be made by the panel members alternately deleting names from
the list until only one remains with the panel member selected by the teacher
to make the first deletion. The third impartial panel member shall chair the
panel. No elected official shall serve as a panel member. Panel members shall
not be parties to, or witnesses to, the matter grieved. With the agreement of
the teacher's and division superintendent's panel members, the impartial panel
member shall have the authority to conduct the hearing and make recommendations
as set forth herein while acting as a hearing officer.
The Attorney General shall represent personally or through
one of his assistants any third impartial panel member who shall be made a
defendant in any civil action arising out of any matter connected with his
duties as a panel member. If, in the opinion of the Attorney General, it is
impracticable or uneconomical for such legal representation to be rendered by him
or one of his assistants, he may employ special counsel for this purpose, whose
compensation shall be fixed by the Attorney General and be paid out of the
funds appropriated for the administration of the Department of Education.
3. Holding of hearing. The hearing shall be held by the
panel within 30 calendar days from the date of the selection of the final panel
member. The panel shall set the date, place, and time for the hearing and shall
so notify the division superintendent and the teacher. The teacher and the
division superintendent each may have present at the hearing and be represented
at all stages by legal counsel or another representative.
4. Procedure for fact-finding panel.
a. The panel shall determine the propriety of attendance at
the hearing of persons not having a direct interest in the hearing, provided
that, at the request of the teacher, the hearing shall be private.
b. The panel may ask, at the beginning of the hearing, for
statements from the division superintendent and the teacher (or their
representative) clarifying the issues involved.
c. The parties shall then present their claims and
evidence. Witnesses may be questioned by the panel members, the teacher and the
division superintendent,. However, the panel may, at its discretion, vary this
procedure but shall afford full and equal opportunity to all parties for
presentation of any material or relevant evidence and shall afford the parties
the right of cross-examination.
B. Procedure for hearing.
1. The hearing shall be conducted by the school board or, at the school board's option, a hearing officer appointed by the school board. The teacher and the division superintendent may be represented by legal counsel or other representatives. The hearing shall be private, unless the teacher requests a public hearing. The school board or hearing officer, as the case may be, shall establish the rules for the conduct of the hearing, and such rules shall include the opportunity for the teacher and the division superintendent to make an opening statement and to present all material or relevant evidence, including the testimony of witnesses, and the right of all parties to cross-examine the witnesses. Witnesses may be questioned by the school board or hearing officer.
d. 2. The parties shall produce such additional
evidence as the panel school board or hearing officer may deem
necessary to an understanding and determination of the dispute. The panel
school board or hearing officer shall be determine the judge
of relevancy and materiality of the evidence offered. All evidence shall be
taken in the presence of the panel school board or hearing officer
and of the parties.
e. 3. Exhibits offered by the teacher or the
division superintendent may be received in evidence by the panel school
board or hearing officer and, when so received, shall be marked and made a
part of the record.
f. The facts found and recommendations made by the panel
shall be arrived at by a majority vote of the panel members.
g. The recommendations and findings of fact of the panel
shall be based exclusively upon the evidence presented to the panel at the
hearing. No panel member shall conduct an independent investigation involving
the matter grieved.
h. The hearing may be reopened by the panel at any time
before the panel's report is made upon its own motion or upon application of
the teacher or the division superintendent for good cause shown to hear
after-discovered evidence.
i. The panel shall make a written report which shall
include its findings of fact and recommendations and shall file it with the
members of the school board, the division superintendent and the teacher, not
later than 30 days after the completion of the hearing.
j. A stenographic record or tape recording of the
proceedings shall be taken. However, in proceedings concerning grievances not
related to dismissal or probation, the recording may be dispensed with entirely
by mutual consent of the parties. In such proceedings, if the recording is not
dispensed with, the two parties shall share the cost of the recording equally;
if either party requests a transcript, that party shall bear the expense of its
preparation.
In cases of dismissal or probation, a record or recording
of the proceedings shall be made and preserved for a period of six months. If
either the teacher or the school board requests that a transcript of the record
or recording be made at any time prior to expiration of the six-month period,
it shall be made and copies shall be furnished to both parties. The school
board shall bear the expense of the recording and the transcription.
5. Expenses.
a. The teacher shall bear his own expenses. The school
board shall bear the expenses of the division superintendent. The expenses of
the panel shall be borne one half by the school board and one half by the
teacher.
b. The parties shall set the per diem rate of the panel. If
the parties are unable to agree on the per diem, it shall be fixed by the chief
judge of the circuit court. No employee of the school division shall receive such
per diem for service on a panel during his normal business hours if he receives
his normal salary for the period of such service.
6. Right to further hearing. If the school board elects to
have a hearing by a fact-finding panel on the dismissal or placing on probation
of a teacher, the teacher shall have the right to a further hearing by the
school board as provided in subsection C of this section. The school board
shall have the right to require a further hearing as provided in subsection C
also.
7. Witnesses. Witnesses who are employees of the school
board shall be granted release time if the hearing is held during the school
day. The hearing shall be held at the school in which most witnesses work, if
feasible.
C. Hearing by school board.
1. After receipt of the notice of pending dismissal or
placing on probation described in subdivision A 1 of this section, the teacher
may request a hearing before the school board by delivering written notice to
the division superintendent within 15 days from the receipt of notice from the
superintendent. Subsequent to the hearing by a fact-finding panel under
subsection B of this section, the teacher, as permitted by subdivision B 6 of
this section, or the school board may request a school board hearing by written
notice to the opposing party and the division superintendent within 10 business
days after the receipt by the party initiating such hearing of the findings of
fact and recommendations made by the fact-finding panel and the transcript of
the panel hearing. Such notice shall be provided upon a form to be prescribed
by the Board of Education and shall specify each matter to be inquired into by
the school board.
2. In any case in which a further hearing is held by a
school board after a hearing before the fact-finding panel, the school board
shall consider at such further hearing the record, or transcript, if any, the
findings of fact and recommendations made by the fact-finding panel and such
further evidence, including, but not limited to, the testimony of those
witnesses who have previously testified before the fact-finding panel as the
school board deems may be appropriate or as may be offered on behalf of the
teacher or the superintendent.
3. The school board hearing shall be set and conducted
within 30 days of the receipt of the teacher's notice or the giving by the
school board of its notice. The teacher shall be given at least 15 days written
notice of the date, place, and time of the hearing and such notice shall also
be provided to the division superintendent.
4. The teacher and the division superintendent may be
represented by legal counsel or other representatives. The hearing before the
school board shall be private, unless the teacher requests a public hearing.
The school board shall establish the rules for the conduct of any hearing
before it, and such rules shall include the opportunity for the teacher and the
division superintendent to make an opening statement and to present all
material or relevant evidence including the testimony of witnesses and the
right of all parties to cross-examine the witnesses. Witnesses may be
questioned by the school board. The school board may hear a recommendation for
dismissal and make a determination whether to make a recommendation to the
Board of Education regarding the teacher's license at the same hearing or hold
a separate hearing for each action.
5. A record or recording of the proceedings shall be made
and preserved for a period of six months. If either the teacher or the school
board requests that a transcript of the record or recording be made at any time
prior to expiration of the six-month period, it shall be made and copies shall
be furnished to both parties. The board shall bear the expense of the recording
and the transcription.
6. The school board shall give the teacher its written
decision within 30 days after the completion of the hearing before the school
board.
7. The decision by the school board shall be based on the
transcript, the findings of the fact and recommendations made by the fact-finding
panel, and any evidence relevant to the issues of the original grievance
produced at the school board hearing in the presence of each party.
The school board's attorney, assistants, or representative,
if he or they represented a participant in the prior proceedings, the grievant,
the grievant's attorney, or representative and, notwithstanding the provisions
of § 22.1-69 of the Code of Virginia, the superintendent shall be excluded from
any executive session of the school board which has as its purpose reaching a
decision on a grievance. However, immediately after a decision has been made
and publicly announced, as in favor of or not in favor of the grievant, the
school board's attorney or representative and the superintendent may join the
school board in executive session to assist in the writing of the decision.
4. A stenographic record or tape recording of the proceedings shall be taken. The two parties shall share the cost of the recording equally. The record or recording of the proceedings shall be preserved for a period of six months. If the school board requests that a transcript of the record or recording be made at any time prior to expiration of the six-month period, it shall be made and copies shall be furnished to both parties. The school board shall bear the expense of the transcription.
5. The teacher shall bear his own expenses. The school board shall bear the expenses of the division superintendent and the hearing officer.
6. Witnesses who are employees of the school board shall be granted release time if the hearing is held during the school day. The hearing shall be held at the school in which most witnesses work, if feasible.
7. In the event of a hearing conducted by a hearing officer, the recommendation of the hearing officer shall be based exclusively upon the evidence presented at the hearing. Upon the hearing officer's own motion or upon application by the teacher or the division superintendent, the hearing officer may reopen the hearing for the purpose of hearing after-discovered evidence upon a finding of good cause by the hearing officer at any time before his recommendation is due. The hearing officer shall transmit his written recommendation and a record or recording of the hearing to the school board as soon as practicable and no more than 10 business days after the hearing.
8. In the event of a hearing by a hearing officer, the school board may make its decision upon the record or recording of such hearing or the school board may elect to conduct a further hearing to receive additional evidence. The school board must hold such further hearing as soon as practicable and must give written notice of the time and place of such further hearing to the division superintendent and the teacher within 10 business days after the board received the record or recording of the initial hearing. The notice must specify each matter to be inquired into by the school board. The school board shall determine the procedure to be followed at such further hearing.
D. C. School board determination.
1. In any case in which a hearing is held before a
fact-finding panel but no further hearing before the school board is requested
by either party, the school board shall give the teacher its written decision
within 30 days after the school board receives both the transcript of such
hearing and the panel's findings of the fact and recommendation. The decision
of the school board shall be reached after considering the transcript, the
findings of fact, and the recommendations made by the panel. In the
event of a hearing before the school board, the school board shall give the
teacher its written decision as soon as practicable and no more than 30 days
after the hearing. The decision of the school board shall be reached after
considering the evidence and information presented at the school board hearing.
2. In the event of a hearing before a hearing officer followed by a further hearing by the school board pursuant to subdivision B 8 of this section, the school board shall give the teacher its written decision as soon as practicable and no more than 30 days after such further hearing. The decision of the school board shall be reached after considering the record or recording of the initial hearing, the recommendations of the hearing officer, and the evidence and information presented at the further hearing before the school board.
3. In the event of a hearing before a hearing officer in cases in which no further hearing is conducted by the school board, the school board shall give the teacher its written decision as soon as practicable and no more than 30 days after receiving the record or recording of the hearing. The decision of the school board shall be reached after considering the record or recording of the hearing and the recommendations of the hearing officer.
2. 4. The school board may dismiss, or
suspend, or place on probation a teacher upon a majority vote of a
quorum of the school board. In the event the school board's decision is at
variance with the recommendation of the fact-finding panel, the school board
shall be required to conduct an additional hearing, which shall be public
unless the teacher requests a private one. However, if the fact-finding hearing
was held in private, the additional hearing shall be held in private. The
hearing shall be conducted by the school board pursuant to subdivisions C 1 and
2 of this section, except that the grievant and the division superintendent
shall be allowed to appear, to be represented, and to give testimony. However,
the additional hearing shall not include examination and cross-examination of
any other witnesses. The school board's written decision shall include the
rationale for the decision. The school board's attorney, assistants, or
representative, if he or they represented a participant in the prior proceedings;
the grievant; the grievant's attorney or representative; and, notwithstanding
the provisions of § 22.1-69 of the Code of Virginia, the superintendent shall
be excluded from any executive session of the school board that has as its
purpose reaching a decision on a grievance. However, immediately after a
decision has been made and publicly announced, as in favor of or not in favor
of the grievant, the school board's attorney or representative and the
superintendent may join the school board in executive session to assist in the
writing of the decision.
FORMS (8VAC20-90)
Statement of Grievance, eff. 2/05
Principal's Decision, eff. 2/05
Superintendent's Level, eff. 2/05
Request for Hearing (Decision to be Presented to Grievant),
eff. 2/05
Notice of Proposed Dismissal or Proposed Placing on
Probation, eff. 2/05
Request for Hearing (to be submitted to Superintendent),
eff. 2/05.
[ Statement of Grievance (undated, filed 11/2015)
Principal's Decision (undated, filed 11/2015)
Superintendent's Decision (undated, filed 11/2015)
Request for Hearing (undated, filed 11/2015)
Notice of Proposed Dismissal (undated, filed 11/2015)
Statement of Grievance (rev. 4/2016)
Principal's Decision (rev. 4/2016)
Superintendent's Decision (rev. 4/2016)