ARTICLE  VI:   EMPLOYEE DISCIPLINE AND GRIEVANCE PROCEDURES

 

 

 

Table of Contents

 

 

5-6.1                   Suspension

5-6.2                 Dismissal or Placement on Probation

5-6.3                 Grievances and Grievance Procedures:  Support Staff

5-6.4                 Grievances and Grievance Procedures: Teachers

5-6.5                 Violation of Test Security Procedures

 

 

 

POLICY 5-6.1    SUSPENSION

 

            A teacher or other Hanover County School employee, whether full-time or part-time, permanent, or temporary, may be suspended for good and just cause when the safety or welfare of the school division or the students therein is threatened or when the teacher or School Board employee has been charged by summons, warrant, indictment or information with the commission of a felony, a crime of moral turpitude or any offense involving the sexual molestation, physical or sexual abuse, or rape of a child.  Except when a teacher or school employee is suspended because of being charged by summons, warrant, indictment or information with the commission of a felony or a crime of moral turpitude, the division superintendent or appropriate central office designee shall not suspend a teacher or School Board employee for longer than sixty days and shall not suspend a teacher or School Board employee for a period in excess of five days unless such teacher or School Board employee is advised in writing of the reason for the suspension and afforded an opportunity for a hearing before the School Board in accordance with Virginia Code §§ 22.1-311 and 22.1-313, if applicable.  Any teacher or other School Board employee so suspended shall continue to receive his then applicable salary unless and until the School Board, after a hearing, determines otherwise.  No teacher or School Board employee shall be suspended solely on the basis of his refusal to submit to polygraph examination requested by the School Board.

 

            Any School Board employee suspended because of being charged by summons, warrant, information or indictment with a felony, a crime of moral turpitude or any offense involving the sexual molestation, physical or sexual abuse, or rape of a child may be suspended with or without pay.  In the event any School Board employee is suspended without pay, an amount equal to his salary while on suspended status shall be placed in an interest-bearing demand escrow account.  Upon being found not guilty of a crime of moral turpitude or any offense involving the sexual molestation, physical or sexual abuse, or rape of a child or upon the dismissal or nolle prosequi of the charge, such School Board employee shall be reinstated with all unpaid salary and accrued interest from the escrow account, less any earnings received by the School Board employee during the period of suspension, but in no event shall such payment exceed one year's salary.

           

In the event any School Board employee is found guilty by a court of a felony, a crime of moral turpitude or any offense involving the sexual molestation, physical or sexual abuse, or rape of a child and, after available appeals have been exhausted and such conviction is upheld, all funds in the escrow account shall be repaid to the School Board.

 

No School Board employee shall have his insurance benefits suspended or terminated because of such suspension in accordance with this Policy.

 

            Nothing in this Policy shall be construed to limit the authority of the School Board to dismiss or place on probation a teacher or School Board employee pursuant to applicable law.

 

LEGAL REFERENCE: Code of Virginia, 1950, as amended, § 22.1-315.

 

Recodified: August 2000

 

 

 

POLICY 5-6.2   DISMISSAL OR PLACEMENT ON PROBATION

 

            Licensed and Classified Licensed Personnel

 

            Hanover County School Board licensed and classified licensed personnel may be dismissed or placed on probation consistent with all applicable law.

 

            Probation and Dismissal 

 

            Teachers may be dismissed or placed on probation for incompetence, immorality, non-compliance with school laws and regulations, disability in accordance with state and federal law, conviction of a felony or a crime of moral turpitude or other good and just cause. Administrative regulations shall be developed for the dismissal or placing on probation of continuing contract teachers and probationary teachers during the school year. No teacher shall be dismissed or placed on probation solely on the basis of the teacher’s refusal to submit to a polygraph examination requested by the School Board.

 

            Non-Licensed Personnel

 

            School Board non-licensed personnel shall be notified of impending dismissal by their immediate supervisor at least two (2) calendar weeks (14 days) in advance of an anticipated separation date, when such notice is reasonable under the circumstances.  Support personnel may be subject to immediate dismissal for just cause.

 

            Support personnel who are removed from employment for just cause by the division superintendent shall be ineligible thereafter for employment in any school or duty station within the Hanover County Public Schools.

 

            Temporary and Part-Time Employees

 

            The division superintendent may place on probation or dismiss temporary and part-time employees when it is deemed that such action is in the best interest of the school division. 

 

            With the exception of school administrative personnel and persons employed by the School Board who have the specific duty to deliver health-related services, no licensed instructional employee, instructional aide, or clerical employee shall be disciplined, placed on probation, or dismissed on the basis of such employee’s refusal to perform nonemergency health-related services for students.  However, instructional aides and clerical employees may not refuse to dispense oral medications.

 

LEGAL REFERENCE: Code of Virginia, 1950, as amended, §§ 22.1-30, 22-1-253.17:7, 22.1-274.

 

Recodified: August 2000

 

 

 

POLICY 5-6.3   GRIEVANCES AND GRIEVANCE PROCEDURES: SUPPORT STAFF

 

Any Hanover County School Board support staff employee may appeal to the School Board a recommendation by the division superintendent to place such employee on probation, or to demote, suspend or dismiss such employee, by making an appropriate request in writing to the division superintendent.

 

LEGAL REFERENCE:       Code of Virginia, 1950, as amended, § 22.1-79 9(6).

 

Recodified: August 2000, Amended:  July 16, 2003

 

 

ACCOMPANYING REGULATION

 

REGULATION 5-6.3       PROCEDURES FOR ADJUSTING GRIEVANCES:  SUPPORT STAFF

 

Placement on Probation, Dismissals, Suspensions, and Demotions

 

            Purpose

 

The purpose of this procedure is to provide a means for personnel in positions not requiring a Virginia teaching license to appeal dismissals, suspensions, placement on probation and demotions.  Employees who have not completed the probationary period established by School Board policy 5-5.2, if applicable, are not eligible to use this procedure.  These disciplinary actions shall be deemed “employer actions” for the purpose of this procedure.

 

            Procedure

 

1.       In the absence of extenuating circumstances, the employee should be given oral or written notice of dismissal, suspension, placement on probation or applicable demotion prior to or extemporaneous with the employer action.

2.       In cases where actions are taken for reasons other than budgetary restrictions or reorganizations, the reasons shall be given orally to the employee by his supervisor or any other supervisory person designated by the division superintendent unless the employee has abandoned the position or is otherwise unavailable.  The employee shall be given the opportunity to present his reasons why the employer action should not be taken.  All information presented shall be considered by the supervisor who shall confirm, modify or reverse the action.

3.       The employee may appeal the decision by written request to the division superintendent within (5) five working days of the decision.  Failure to make a timely written request for a meeting will constitute a waiver of this right.  The division superintendent or his designee, who may not be the person who heard the employee’s reasons in step 2, shall hold a hearing within fifteen working days of receipt of the employee’s request.  Notice of the hearing date shall be given orally or in writing to the employee at least five calendar days before the hearing.

4.       The employee and his supervisor may be represented by legal or other representatives at the step 3 hearing.  The hearing shall be private and the division superintendent or his designee shall have full discretion over the conduct of the hearing.  However, the employee and the supervisor may make opening statements, may present all material and relevant evidence including the testimony of witnesses, and may cross-examine all witnesses.  Witnesses may be questioned by the division superintendent or his designee.  The hearing shall not be a full scale judicial proceeding with trial-type rules and procedures, but shall be informal within the guidelines described above. An audio recording of the hearing shall be made and the recording shall be preserved for a period of six (6) months.  The School Board shall bear the expense of the recording.

5.       The employee shall bear his or her own expenses.  The School Board shall bear the expenses of the division superintendent or his designee.  Witnesses who are School Board employees will be granted release time if the meeting is held during the school day.  The meeting shall be held at a site designated by the division superintendent or his designee.

6.       The division superintendent or his designee shall give a written decision within ten (10) working days after the completion of the hearing.  The decision shall be based on the evidence relevant to the issues produced at the hearing in the presence of each party. 

7.       The School Board shall hear appeals of employer actions only when the employee submits a written notice of appeal within five (5) working days of the written decision by the division superintendent or his designee.  Such notice shall be submitted to the division superintendent.  The decision by the School Board shall be based solely on the transcript of the hearing before the division superintendent or his designee and on the recommendation of the division superintendent or his designee.  The School Board shall give a decision within thirty (30) working days after the School Board receives the transcript of the hearing.

 

Amended:  July 16, 2003, December 14, 2004

 

 

 

 

POLICY 5-6.4   GRIEVANCES AND GRIEVANCE PROCEDURES:  TEACHERS

 

            The Hanover County School Board honors the procedures for adjusting grievances as prescribed by the Board of Education of the Commonwealth of Virginia as amended by that body from time to time.

 

LEGAL REFERENCE:  Code of Virginia, 1950, as amended, §§ 22.1-253.13:7, 22.1-306, et seq; Regulations Governing Adjustment of Grievances, 8 VAC 20-90-10.

 

Recodified: August 2000

 

 

ACCOMPANYING REGULATION

 

REGULATION 5-6.4       PROCEDURES FOR ADJUSTING GRIEVANCES:  TEACHERS

 

Part I - Definitions

 

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

 

"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 on a Saturday, Sunday, or legal holiday, the period of time for taking action under this procedure shall be extended to the next day if it is not a Saturday, Sunday, or legal holiday.

 

            “Business Day” means, in accordance with §22.1-312 of the Code of Virginia, any day that the relevant School Board office is open.

 

"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 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 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 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, 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.  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.

 

"Personnel file" means, for the purposes of Part III 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 on 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 all employees of the school division involved in classroom instruction, except those employees classified as supervising employees and support staff employees.  "Teacher" means, for the purposes of Part III all regularly certified professional public school personnel employed under a written contract as provided by §22.1-302 of the Code of Virginia, by the school division as a teacher or supervisor of classroom teachers, but excluding the division superintendent.

 

"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.

 

"Supervisory employee" means any person having authority in the interest of the School 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 (i), (ii), or (iii) above; provided that the authority to act as set forth in (i), (ii), (iii), or (iv) requires the exercise of independent judgment and is not merely routine and clerical in nature. 

 

“Support staff employee” means any employee in a position not requiring a Virginia teaching license.

 

"Written grievance appeal" means a written or typed statement describing the event or action complained of, or the date of the event or action, and a concise description of those policies, procedures, 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 shall be written upon forms prescribed by the Board of Education and supplied by the School Board.

 

Part II – Resolution of Disputes Other Than Dismissals or Probation

 

Grievance Procedure

 

Recognizing that grievances should be begun and 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:

 

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.

 

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 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 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 (5) 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 (5) business days following such meeting.

 

The principal may forward to the teacher within five (5) 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 ten (10) business days, and the meeting must then be held within five (5) days thereafter.

 

Step 3 – Division 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 division superintendent, accompanied by the original grievance appeal form within five (5) business days after receipt of the Step 2 answer (or the due date of such answer). A meeting shall then be held between the division superintendent (or his designee or both) and the teacher (or his designee or both) at a mutually agreeable time within five (5) business days. At such meeting both the division 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 division superintendent without violating the provisions of §54.1- 3904 of the Code of Virginia. If no settlement can be reached in said meeting, the division superintendent (or his designee) shall respond in writing within five (5) business days following such meeting. The division 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 ten (10) business days, and the meeting shall be held within five (5) 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.

 

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 intention to request a fact-finding panel and enclose a copy of the original grievance form within five (5) 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 division superintendent must serve written notice of the School Board's intention upon the grievant within fifteen (15) business days after the answer provided by Step 3.

 

a.      Panel.  Within five (5) 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 (2) panel members so selected shall within five (5) 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 (5) 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 (5) qualified and impartial individuals from which one individual shall be selected by the two (2) 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 (5) business days after receipt by the two (2) 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 (1) 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 thirty (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, for statements from the division superintendent and the teacher clarifying the issues involved.

 

3.   The parties shall then present their claims in 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 for 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 shall deem necessary to an understanding and determination of the dispute. The panel may 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 or 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 final 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 thirty (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 (2) 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 (6) 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.

 

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 elsewhere in this regulation.  The School Board shall have the right to require a further hearing in any grievance proceeding as provided.

 

Step 5 - Decision by the School Board

 

a.       If a teacher elects to proceed directly to a determination before the School Board as provided for in Step 5, he must notify the division superintendent in writing of the intention to appeal directly to the School Board, of the grievance alleged, and the relief sought within five (5) 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 ten (10) business days of the deadline for the teacher's request for a determination by the School Board.

 

b.       In the case of a hearing before a fact-finding panel, the School Board shall give the grievant its written decision within thirty (30) days after the School Board receives both the transcript of such hearing, if any, and the panel's finding of facts 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 School Board may conduct a further hearing.

 

(1)  The 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 School 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 Virginia 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.  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.  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.

 

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 division superintendent, shall be excluded from any closed session of the School Board which 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 division superintendent, may join the School Board in closed session to assist in the writing of the decision.

 

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.  If In such proceedings, if the recording is not dispensed with, the two (2) 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 (6) 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.

 

(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 School 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 division superintendent.

 

e.       The School Board shall retain its exclusive final authority over matters concerning employment and the supervision of its personnel.

 

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 or grievant.  The School Board shall reach its decision only after allowing the division superintendent 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 days of such request.  Such determination of grievability shall be made subsequent to the reduction of the grievance to writing and prior to any panel or School Board hearing 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 ten (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 ten (10) business days after the date of the decision and giving a copy thereof to all other parties.

b.      Within ten (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 ten (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.

 

Time Limitations

 

The right of any party to proceed at any step of this Part II grievance procedure shall be conditioned upon compliance with the time limitations and other requirements set forth in this procedure.

 

The failure of the teacher to comply with all substantial procedural requirements including initiation of the grievance and notice of appeal to the next step in the procedure, shall eliminate the teacher's right to any further proceedings on the grievance unless just cause for such failure can be shown.

 

The failure of the School Board or any supervisory employee to comply with all substantial procedural requirements without just cause shall entitle the grievant, at his option, to advance to the next step in the procedure or, at the final step, to a decision in his favor.

 

The determination as to whether the substantial procedural requirements of this Part II of the Procedure for Adjusting Grievances have been complied with shall be made by the School Board.  In any case in which there is a factual dispute as to whether the procedural requirements have been met or just cause has been shown for failure to comply, the School Board shall have the option of allowing the grievant to proceed to its next step.  The fact that the grievance is allowed to proceed in such case shall not prevent any party from raising such failure to observe the substantial procedural requirements as an affirmative defense at any further hearing involving the grievance.

 

Part III – Resolution of Disputes Involving Dismissals or Probation

 

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 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.

 

  1. During such 15-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.

 

  1. 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 ten (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 ten (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.

 

B.         Fact-Finding Panel

 

Within fifteen (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 (5) 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 (10) 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 (2) panel members so selected shall within five (5) business days of their selection, select a third impartial panel member.

 

  1. Selection of impartial third member - In the event that both panel members are unable to agree upon a third panel member within five (5) 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 (5) qualified and impartial individuals from which list one (1) individual shall be selected by the two (2) 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 (5) business days after receipt by the two (2) 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 (1) 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.

 

  1. 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 paid out of the funds appropriated for the administration of the Department of Education.

 

  1. Holding of Hearing  - The hearing shall be held by the panel within thirty (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 a representative or legal counsel or another representative.

 

  1. 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.

d.      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 relevancy and materiality of the evidence offered. All evidence shall be taken in the presence of the panel and of the parties.

e.      Exhibits offered by the teacher or 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.

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.

 

6.   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.

 
7.   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 elsewhere in this Policy.  The School Board shall have the right to require a further hearing as provided also.

 

8.   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, the teacher may request a hearing before the School Board by delivering written notice to the division superintendent within fifteen (15) days from the receipt of notice from the division superintendent.  Subsequent to the hearing by a fact-finding panel, as described in Part III , A(1), the teacher or the School Board may request a School Board hearing by written notice to the opposing party and the division superintendent within ten (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 Virginia Board of Education and shall specify each matter to be inquired into by the School Board.

 

  1. 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 finding 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 appropriate or as may be offered on behalf of the teacher or the division superintendent.

 

  1. 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 fifteen (15) dayswritten notice of the date, place, and time of the hearing and such notice shall also be provided to the division superintendent.

 

  1. 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.  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.

 

  1. 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.

 

  1. The School Board shall give the teacher its written decision within 30 days after the completion of the hearing before the School Board.

 

  1. The decision by the School Board shall be based on the transcript, the findings of 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 this Virginia Code §22.1-69, the division superintendent shall be excluded from any closed 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 division superintendent may join the School Board in closed session to assist in the writing of the decision.

 

D.         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 part, the School Board shall give the teacher its written decision within thirty (30) days after the School Board receives both the transcript of such hearing and the panel’s findings of fact and recommendations.  The decision of the School Board shall be reached after considering the transcript, the findings of fact, and the recommendations made by the panel.

 

  1. The School Board may dismiss, 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 recommendations 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 this regulation, 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.
 
Time Limitations

 

The right of any party to proceed at any step of the grievance procedure shall be conditioned upon compliance with the time limitations and other requirements set forth in this grievance procedure.

 

1.     The failure of the grievant to comply with all substantial procedural requirements shall terminate the teacher's right to any further proceedings on the grievance unless just cause for such failure can be shown.

 

2.     The failure of the School Board or of any supervisory employee to comply with all substantial procedural requirements without just cause shall entitle the grievant, at his option, to advance to the next step in the procedure or, at the final step, to a decision in his favor.

 

3.       The determination as to whether the substantial procedural requirements of Part III have been complied with shall be made by the School Board.  In any case in which there is a factual dispute as to whether the procedural requirements have been met or just cause has been shown for failure to comply, the School Board shall have the option of allowing the grievance to proceed to its next step.  The fact that the grievance is allowed to proceed in such case shall not prevent any party from raising such failure to observe the substantial procedural requirements as an affirmative defense at any further hearing involving the grievance.

 

Amended:  December 14, 2004, July 12, 2005, June 12, 2012

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

POLICY 5-6.5   VIOLATION OF TEST SECURITY PROCEDURES

 

            All employees involved with the administration of “secure tests,” as that term is defined in Virginia Code §§ 22.1-19.1 and 22.1-292.1, are prohibited from committing any acts that compromise secure testing.  Violations of this policy shall result in disciplinary action, up to and including dismissal and recommendations to the Virginia Board of Education for the revocation of the employee’s administrative or teacher license.

 

LEGAL REFERENCE:  Code of Virginia §§ 22.1-19.1 and 22.1-292.1

 

Adopted:  April 3, 2007

 

 

ACCOMPANYING REGULATION

 

REGULATION 5-6.5       VIOLATION OF TEST SECURITY PROCEDURES

 

Part I.  Actions for Violations of Test Security Procedures

 

  1. Employees involved in the administration of secure tests shall not knowingly and willfully commit any of the following acts:

 

1.                Permitting unauthorized access to secure test questions prior to testing;

2.                Copying or reproducing all or any portion of any secure test booklet/writing prompt;

3.                Divulging the contents of any portion of a secure test;

4.                Altering test materials or examinees’ responses in any way;

5.                Creating or making available answer keys to secure tests;

6.                Making a false certification on the test security form established by the Department of Education; or

7.                Participating in, directing, aiding or abetting, or assisting in any of the acts prohibited in this section.

 

  1. For the purpose of this subsection, “secure” means an item, question, or test that has not been made publicly available by the Virginia Department of Education or other recognized educational testing organizations.

 

  1. Any suspected violation will result in investigation by a committee with representatives from the departments of Instructional Leadership, Human Resources, and school administration, as necessary.  If it is determined that a violation has occurred, disciplinary recommendations to the superintendent will be made.

 

Part II.  Revocation of License

 

  1. Employees involved in the administration of secure tests shall not knowingly and willfully commit any of the following acts:

 

1.                   Giving unauthorized access to secure test questions;

2.                   Copying or reproducing all or any portion of any secure test booklet/writing prompt;

3.                   Divulging the contents of any portion of a secure test;

4.                   Coaching or assisting examinees during testing or altering examinees’ responses in any way;

5.                   Making available any answer keys;

6.                   Failing to follow test security procedures established by the Department of Education;

7.                   Providing a false certification on any test security form required by the Department of Education;

8.                   Retaining a copy of secure test questions; and

9.                   Participating in, directing, aiding, assisting in, or encouraging any of the acts prohibited by this section.

 

  1. For the purposes of this section, “secure test” means an item, question, or test that has not been made publicly available by the Virginia Department of Education or other recognized educational testing organizations.

 

  1. Any suspected violation will result in investigation by a committee with representatives from the departments of Instructional Leadership, Human Resources, and school administration, as necessary.  If it is determined that a violation has occurred, disciplinary recommendations to the superintendent will be made.  Action may also include recommendation for revocation of license.