71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
Enrolled
Senate Bill 257
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Superintendent of Public
Instruction Stan Bunn)
CHAPTER ................
AN ACT
Relating to Fair Dismissal Appeals Board; creating new
provisions; amending ORS 342.905 and 342.930; and declaring an
emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 342.905 is amended to read:
342.905. (1) If the district school board dismisses the teacher
or does not extend the contract of the contract teacher, the
teacher or the teacher's representative may appeal that decision
to the Fair Dismissal Appeals Board established under ORS 342.930
by depositing by certified mail addressed to the Superintendent
of Public Instruction and a copy to the superintendent of the
school district:
(a) In the case of dismissal, within 10 days, as provided in
ORS 174.120, after receipt of notice of the district school
board's decision, notice of appeal with a brief statement giving
the reasons for the appeal.
(b) In the case of a contract non-extension, within 15 days, as
provided in ORS 174.120, after receipt of the written notice of
non-extension of a contract, notice of appeal with a brief
statement giving the reasons for the appeal.
{ + (2)(a) As soon as practicable after the time the notice
of appeal is received by the Superintendent of Public
Instruction, the superintendent shall appoint a panel of three
members from the Fair Dismissal Appeals Board for the purpose of
conducting a hearing. Insofar as practicable, the panel shall be
selected from those members of the board serving in positions
where the average daily membership as determined in ORS 342.930
most nearly coincides with that of the involved district. The
panel shall consist of:
(A) One member from the category representing district school
board members;
(B) One member from the category not affiliated with common or
union high school districts; and
(C) One member from the category representing teachers or
administrators, as follows:
(i) If the appeal is from a contract teacher in a teaching
position, the panel shall include the teacher member of the
board.
Enrolled Senate Bill 257 (SB 257-A) Page 1
(ii) If the contract teacher is in an administrative position,
an administrative member shall sit in place of the teacher
member.
(b) The panel may not contain a member who is a resident of the
district that is bringing the dismissal or non-extension.
(c) The Department of Education, at the department's expense,
shall provide to the panel appropriate professional and other
special assistance reasonably required to conduct a hearing. The
panel shall be empowered, on behalf of the contract teacher, the
district superintendent and the district school board, to
subpoena and swear witnesses and to require witnesses to give
testimony and produce relevant evidence at or prior to the
hearing.
(d) The executive secretary of the board may issue subpoenas on
behalf of a panel. A person subpoenaed under this subsection may
move to quash or modify the subpoena if it is oppressive or
unreasonable. The motion must be made before the time specified
in the subpoena for appearance or production of materials. The
motion may be made to the executive secretary or the panel. + }
{ - (2) - } { + (3) + } The Attorney General shall assign
an assistant, at no cost to either involved party, to advise the
Fair Dismissal Appeals Board, to be present at { - the oral
argument - } { + any hearing + } held by { - the board - }
{ + a panel + }, and to perform those tasks at the request of
the board that would normally require legal training.
{ - (3) - } { + (4) + } Within { - five - } { + 10 + }
days after receipt of the notice of an appeal of contract
non-extension, the district shall serve upon the Fair Dismissal
Appeals Board and the teacher a written statement of reason for
the contract non-extension, which shall include:
(a) A plain and concise statement of the facts relied on to
support the statutory grounds for non-extension of the contract;
(b) The statutory grounds upon which the district believes such
contract non-extension is justified; and
(c) A list of witnesses and documents upon which the district
will rely at hearing.
{ - (4)(a) The Employment Relations Board shall maintain a
list of no fewer than 10 persons who are experienced in public
education and employment relations. The Employment Relations
Board shall give priority consideration for such list to persons
jointly recommended by the Oregon School Boards Association and
Oregon Education Association provided that, if there are
insufficient joint recommendations from those organizations, the
Employment Relations Board may select other persons who the board
determines hold the requisite experience and neutrality to
resolve disputes. - }
{ - (b) Upon the filing of an appeal of a contract dismissal
or non-extension, a hearings officer shall forthwith be mutually
selected by the parties from a list maintained by the Employment
Relations Board. - }
{ - (c) Alternatively, the teacher and the district
superintendent may agree on an individual who is not on the list
to serve as the hearings officer. - }
{ - (d) The parties shall mutually share the reasonable costs
and charges of the hearings officer. - }
(5)(a) At least 10 days prior to the hearing, the teacher shall
provide a list of witnesses and exhibits to the { - hearings
officer - } { + Fair Dismissal Appeals Board panel + } and the
school district.
Enrolled Senate Bill 257 (SB 257-A) Page 2
(b) The { - hearings officer - } { + Fair Dismissal Appeals
Board panel + } shall hold a contested case hearing under ORS
183.310 to 183.550 within { - 30 - } { + 100 + } days of the
receipt by the teacher of notice of dismissal { - , - } or
{ - within 35 days of the receipt by the teacher - } of the
statement of reasons in the case of contract non-extension.
{ + No later than 140 days after the filing of an appeal,
consistent with due process, the Fair Dismissal Appeals Board
panel shall prepare and send a written decision to the contract
teacher, the district superintendent, the district school board
and the Superintendent of Public Instruction. + } { - The
hearings officer shall be empowered to take all steps reasonably
necessary to conduct a hearing, develop and maintain a record of
testimony, documents and other exhibits, and to make findings of
fact that in the hearings officer's judgment are pertinent to the
dispute. The hearings officer, at the request of the district or
teacher, may subpoena and swear in witnesses and require them to
give testimony and to produce documents and other records
relevant to the issues before the Fair Dismissal Appeals
Board. - } The hearing shall be private unless the teacher
requests a public hearing. At the hearing, the district and the
contract teacher shall have the right to be present and be heard,
to be represented by counsel, to present evidence and
cross-examine adverse witnesses and to offer evidence that in the
{ - hearings officer's - } { + panel's + } judgment is
relevant to the dispute. The { - hearings officer - }
{ + panel + } may take all reasonable steps to require the
parties to conclude the hearing in an expeditious manner.
{ - (c) The hearings officer shall file proposed findings of
fact in the dispute no later than 30 days after the close of the
hearing and serve the same on the parties and Fair Dismissal
Appeals Board by personal service or certified mail, return
receipt requested. - }
{ - (d) Within 10 days of receipt of the hearings officer's
proposed findings of fact, either party may file objections to
the proposed findings of fact. However, no new testimony,
documents or exhibits will be accepted by the board. If no such
objections to the findings of fact are filed, the proposed
findings of fact shall be accepted by the Fair Dismissal Appeals
Board, which shall proceed to consider the controversy unless the
parties inform the Fair Dismissal Appeals Board that the dispute
has been resolved. - }
{ - (6) As soon as possible after the time the notice of
appeal is received by the Superintendent of Public Instruction,
the superintendent shall appoint a panel of three members from
the Fair Dismissal Appeals Board. Insofar as practicable the
panel shall be selected from those members of the board serving
in positions where the average daily membership as determined in
ORS 342.930 most nearly coincides with that of the involved
district. One member shall be from the category representing
board members; one member shall be from the category of persons
not affiliated with common or union high school districts; and
one member shall be from the category representing teachers or
administrators. If the appeal is from a contract teacher in a
teaching position, the board shall include the teacher member. If
the contract teacher is in an administrative position, the
administrative member shall sit in place of the teacher member.
No panel shall contain a member who is resident of the district
that is bringing the dismissal or non-extension. - }
Enrolled Senate Bill 257 (SB 257-A) Page 3
{ - (7) Upon receipt of the hearings officer's proposed
findings of fact and any objection filed by the parties, the Fair
Dismissal Appeals Board panel shall provide the parties with a
reasonable opportunity for oral and written argument. The oral
argument shall be limited to one-half hour for each party. No
later than 140 days after filing of the appeal, consistent with
due process, the Fair Dismissal Appeals Board panel shall render
its written decision and serve the same on the parties by
personal service or certified mail, return receipt requested. - }
{ - (8) - } { + (6) + } When the Fair Dismissal Appeals
Board panel has completed its { - review - } { + hearing + },
it shall prepare a written
{ - report - } { + decision + } and send it to the contract
teacher, the district superintendent, the district school board
and the Superintendent of Public Instruction. The Fair Dismissal
Appeals Board panel shall determine whether the facts relied upon
to support the statutory grounds cited for dismissal or
non-extension
{ - and included in the hearings officer's findings of fact - }
are true and substantiated. { - The panel's review of the
evidence shall be de novo. - } If the panel finds these facts
true and substantiated, it shall then consider whether such
facts, in light of all the circumstances and additional facts
{ - found by the hearings officer - } { + developed at the
hearing + } that are relevant to the statutory standards in ORS
342.865 (1), are adequate to justify the statutory grounds cited.
In making such determination, the panel shall consider all
reasonable written rules, policies and standards of performance
adopted by the school district board unless it finds that such
rules, policies and standards have been so inconsistently applied
as to amount to arbitrariness. The panel shall not reverse the
dismissal or non-extension if it finds the facts relied upon are
true and substantiated unless it determines, in light of all the
evidence and for reasons stated with specificity in its findings
and order, that the dismissal or non-extension was unreasonable,
arbitrary or clearly an excessive remedy. { - The panel shall
prepare the report within 30 days from the date of the oral
arguments. - }
{ - (9)(a) - } { + (7)(a) + } Subject to subsection
{ - (8) - } { + (6) + } of this section { + and paragraph (b)
of this subsection + }, if the Fair Dismissal Appeals Board panel
finds that the facts relied on to support the recommendation of
the district superintendent are untrue or unsubstantiated, or if
true and substantiated, are not adequate to justify the statutory
grounds cited as reason for the dismissal or non-extension, and
so notifies the contract teacher, the district superintendent,
the district school board and the Superintendent of Public
Instruction, the teacher shall be reinstated and the teacher
shall receive such back pay as ordered by the Fair Dismissal
Appeals Board panel for the period between the effective date of
the dismissal or non-extension and the date of the order
reinstating the teacher, or the date when the district actually
reinstates the teacher, whichever is later. However, nothing in
this section requires a school district to pay the teacher until
the reinstatement occurs if the district has other legal grounds
for not reinstating the teacher.
(b) So long as the right of the district board under subsection
{ - (11) - } { + (9) + } of this section and under ORS 183.480
and 183.500 to judicial review of the action of the Fair
Enrolled Senate Bill 257 (SB 257-A) Page 4
Dismissal Appeals Board remains unexpired, the district school
board may withhold the reinstated teacher from performance of
teaching duties, unless otherwise ordered by the court having
jurisdiction of the appeal.
(c) Subject to ORS 342.850 (9), if the Fair Dismissal Appeals
Board panel determines that the procedures described in ORS
342.850 (2)(b)(A) to (D) have not been substantially complied
with, the teacher may be reinstated with back pay as provided in
paragraph (a) of this subsection.
{ - (10) - } { + (8) Subject to subsection (6) of this
section, + } if the Fair Dismissal Appeals Board panel finds the
facts relied on to support the recommendation of the district
superintendent true and substantiated, and that those facts
justify the statutory grounds cited as reason for the dismissal
or non-extension and so notifies the contract teacher, the
district superintendent, the district school board and the
Superintendent of Public Instruction in writing, the dismissal or
non-extension becomes final on the date of the notice.
{ - (11) - } { + (9) + } An appeal from action of the Fair
Dismissal Appeals Board { + panel + } shall be taken in the
manner provided in ORS 183.480.
{ - (12)(a) - } { + (10)(a) + } If both the district board
and the teacher or teacher's representative agree, arbitration
may be used as an alternative to a hearing before { - the - }
{ + a + } Fair Dismissal Appeals Board { + panel + } to
determine if the teacher's dismissal or non-extension of a
contract is in compliance with the standards of ORS 342.805 to
342.910. If the teacher or teacher's representative desires to
use the arbitration procedure, the request for arbitration shall
be included in the request for appeal that is filed with the
Superintendent of Public Instruction under this section. Within
10 days of the time the superintendent of the district is
notified of the teacher's intent to appeal the dismissal or
non-extension of a contract, the superintendent of the district
shall notify the teacher or teacher's representative and the
Superintendent of Public Instruction as to whether the district
has agreed to use the arbitration procedure. If the district
determines not to use the arbitration procedure, the hearing
procedure shall be continued under this section in the same
manner as if no request for arbitration had been made. If the
arbitration procedure is used, the teacher has no further rights
to a hearing before { - the - } { + a + } Fair Dismissal
Appeals Board { + panel + }.
(b) The procedures for selection of the arbitrator are those in
the applicable collective bargaining agreement. If there is no
provision or agreement or if the agreement does not contain a
procedure for selection, the parties shall request a list of five
arbitrators from the Employment Relations Board and shall choose
an arbitrator by alternative striking of names until one name is
left. The remaining person shall act as the arbitrator. The
Employment Relations Board shall compile a roster of qualified
arbitrators from which the lists are to be taken.
(c) In determining whether the district board's dismissal or
non-extension of the teacher should be sustained, the arbitrator
shall use the same reasons, rules and levels of evidence as are
required for the Fair Dismissal Appeals Board under ORS 342.805
to 342.910.
SECTION 2. ORS 342.930 is amended to read:
342.930. (1) A Fair Dismissal Appeals Board is created,
consisting of 20 members appointed by the Governor, subject to
Enrolled Senate Bill 257 (SB 257-A) Page 5
confirmation by the Senate as provided in ORS 171.562 and
171.565. Five members shall be administrators in common or union
high school districts, five members shall be contract teachers,
five members shall be members of common or union high school
district boards at the time of their appointment and five members
shall not be affiliated with any common or union high school
district. At least one member from each category shall be
resident of a school district with an average daily membership as
defined in ORS 327.006, of less than 1,500 students; one from
each category shall be resident of a school district containing
from 1,500 to 4,500 students; and one from each category shall be
resident of a school district containing over 4,500 students.
(2) Except as provided in subsection (3) of this section, the
term of office of each member is four years, but a member serves
at the pleasure of the Governor. Before the expiration of the
term of a member, the Governor shall appoint a successor whose
term begins on July 1 next following. A member is eligible for
reappointment. If there is a vacancy for any cause, the Governor
shall make an appointment to become immediately effective for the
unexpired term.
(3) A member whose term has expired may continue to serve for
the following limited purposes:
(a) To conduct a { - review - } { + hearing + } and prepare
a { - report - } { + written decision + } if the member was
appointed to a panel in accordance with ORS 342.905 { - (6) - }
{ + (2) + } before the expiration of the member's term; or
(b) To reconsider a decision if the member served on the panel
originally hearing an appeal and a motion for reconsideration is
filed prior to an appeal to the Court of Appeals.
(4) The continued service of a member as provided in subsection
(3) of this section shall not prevent a successor from taking
office at the time prescribed in subsection (2) of this section.
(5) Members shall be entitled to compensation and expenses as
provided in ORS 292.495 for each day or part thereof during which
they perform duties under ORS 342.805, 342.815, 342.835, 342.850,
342.875, 342.895 to 342.910 and this section, to be paid by the
district school board from which the appeal is taken. However,
any member of the board who would be entitled to receive a per
diem except for being employed in full-time public service may
receive the payment if service on the board is performed while
the member is not under obligation to perform contractual
teaching or administrative duties.
(6) The board shall select one of its members as chairperson
and another as vice chairperson, for such terms and with duties
and powers necessary for the performance of the functions of such
offices as the board determines.
(7) A majority of the members of the board constitutes a quorum
for the transaction of business.
{ + (8) In accordance with applicable provisions of ORS
183.310 to 183.550, the board may adopt rules necessary for the
administration of this section and ORS 342.905 and 342.910. + }
SECTION 3. { + The amendments to ORS 342.905 and 342.930 by
sections 1 and 2 of this 2001 Act shall first apply to appeals
filed with the Fair Dismissal Appeals Board for which the first
hearing is conducted on or after September 1, 2001. + }
SECTION 4. { + This 2001 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2001 Act takes effect on its
passage. + }
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Enrolled Senate Bill 257 (SB 257-A) Page 6
Passed by Senate April 23, 2001
Repassed by Senate June 1, 2001
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House May 29, 2001
...........................................................
Speaker of House
Enrolled Senate Bill 257 (SB 257-A) Page 7
Received by Governor:
......M.,............., 2001
Approved:
......M.,............., 2001
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2001
...........................................................
Secretary of State
Enrolled Senate Bill 257 (SB 257-A) Page 8