Classified Employee Grievance Procedures: A Refresher Virginia Association of School Personnel Administrators April 28, 2017 Bradford A. King bking@sandsanderson.com (804) 783-7263

Virginia Code Section 22.1-79(6) “A school board shall: . . . (6) In instances in which no grievance procedure has been adopted prior to January 1, 1991, establish and administer by July 1, 1992, a grievance procedure for all school board employees, except the division superintendent and those employees covered under the provisions of Article 2 (§ 22.1-293 et seq.) and Article 3 (§ 22.1-306 et seq.) of Chapter 15 of this title, who have completed such probationary period as may be required by the school board, not to exceed 18 months. The grievance procedure shall afford a timely and fair method of the resolution of disputes arising between the school board and such employees regarding dismissal or other disciplinary actions, excluding suspensions, and shall be consistent with the provisions of the Board of Education’s procedures for adjusting grievances. Except in the case of dismissal, suspension, or other disciplinary action, the grievance procedure prescribed by the Board of Education pursuant to § 22.1-308 shall apply to all full-time employees of a school board, except supervisory employees.”

Who is covered? All school board employees, EXCEPT: (1) The Division Superintendent; (2) Employees covered by Article 2 – Principals, Assistant Principals, Supervisors and Teachers “Supervisor” means a person who holds an instructional supervisory position as specified in the regulations of the Board of Education and who is required to hold a license as prescribed by the Board of Education. (3) Employees covered by Article 3 “Grievances; Dismissal, Etc. of Teachers”

Who is covered? THE TEACHER GRIEVANCE PROCEDURE INCLUDES THE FOLLOWING DEFINITIONS: "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 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 as a teacher or as an assistant principal, principal, or supervisor as provided by § 22.1-294 of the Code of Virginia.

Who is covered? "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.

Who is covered? So who is covered by the Classified Employee Grievance Procedure? (1) Full-time employees falling outside the categories above; (2) Who have completed the probationary period required by School Board Policy (up to 18 months). Custodians Clerical Maintenance Bus Drivers Food Service IT Employees Finance Personnel Human Resources Personnel Directors of These Departments Persons licensed other than by the VDOE (e.g., school psychologists, occupational and speech therapists)

Who is covered? A school principal was covered by both of two articles in subdivision 6 of § 22.1-79, and thus, an exception applied, which meant he was not entitled to use the grievance procedure in that statute; rather, he had to look to the grievance procedure rights available under § 22.1-308, and since that provision only applied to the suspension of teachers, his suspension from his position as a school principal did not involve a grievable matter. Tazewell County Sch. Bd. v. Brown, 267 Va. 150 (2004)

Who is covered? A “supervisor” for purposes of Virginia Code § 22.1-294 (and, therefore, eligible for continuing contract) had to be a person in a position for which a license was required; an Instructional Technology Specialist was not such a position, and therefore was not a “supervisor” within the meaning of the statute and the continuing contract provisions (as a supervisor) did not apply to him. Downs v. Brunswick County Sch. Bd., 74 Va. Cir. 191 (2007) IT Specialist was reassigned to a teaching position, and argued he had continuing contract as a supervisor. Would the classified employee grievance procedure have applied if he had been recommended for termination?

What is the process? “The grievance procedure shall afford a timely and fair method of the resolution of disputes arising between the school board and such employees regarding dismissal or other disciplinary actions, excluding suspensions, and shall be consistent with the provisions of the Board of Education’s procedures for adjusting grievances.” Review your school board policy – variations on the theme. Must it include an independent hearing officer? Must it include a hearing before the school board, or merely a review on the record?

What is the Process? Sullivan v. Warren County School Board, 49 Va. Cir. 226 (1999) Facts: School division terminated 26-year veteran cafeteria supervisor, allegedly for cause. Her contract included the following clause: “Each party reserves the right to terminate this contract upon fifteen (15) days written notice to the other party. In the event this contract is so terminated, the party of the second part (employee) shall be paid for services rendered in accordance with this contract to date of contract termination.” Pursuant to WCPS Grievance Procedure for Classified Employees, the supervisor met first with her immediate supervisor and the human resources director; appealed in writing to the division superintendent, and received a written decision upholding the recommendation; then appealed to the School Board and received a letter upholding the termination, without conducting a hearing.

What is the Process? Sullivan v. Warren County School Board (Cont’d) Complaint: Supervisor alleged a number of violations, including that the School Board’s grievance procedure for non-teacher employees does not comply with constitutional and statutory provisions. Holding: The Court sustained the School Board’s demurrer. (1) The Supervisor had no property interest in her job, other than her one-year contract. Her contract expressly provided for termination without cause upon fifteen days notice. (2) “In Virginia a non-teacher employee like the Plaintiff is not entitled to ‘some kind of hearing’ before or after dismissal, she is simply entitled to a review of her dismissal by her superiors pursuant to the statutory procedure.”

What is the Process? Sullivan v. Warren County School Board (Cont’d) Holding: (3) “The statute provides that the final procedural step ‘shall provide for a final decision on the grievance by the school board.’ This is a statutory review procedure, not a statutory hearing procedure.” The Court noted further that “[i]t is unfortunate that the state statute does not define what ‘consistent with the Board of Education’s procedures for adjusting grievances’ means.” (4) “The clear intent of Virginia Code § 22.1-79(6) is to require localities to have a grievance procedure for non-teacher employees that gives them the opportunity to have their dismissal reviewed and to provide an opportunity to present their side of the issue to persons not directly involved in the dispute. In this context, ‘consistent with’ means having the essential components. The Warren County School Board grievance procedure for non- teacher employees is ‘consistent with the Board of Education’s procedure for adjusting grievances,’ because it provides for notice, opportunity to respond, review by superiors, and ultimate review by the School Board.”

What is the Process? Pettis v. Nottoway County School Board, 2013 U.S. Dist. LEXIS 86556 (E.D. Va. 2013) Facts: School Board did not re-appoint Plaintiff computer technician and coach, after allegations of improper coaching activities and secretly tape-recording a meeting with the division superintendent, which was determined to be unprofessional conduct. Complaint: Plaintiff alleged retaliatory discharge, racial discrimination and denial of due process of law – for refusing Plaintiff an opportunity to appeal the Board’s decision not to renew his contract.

What is the Process? Pettis v. Nottoway County School Board (Cont’d) Holding: The Magistrate Judge recommended (and the Court later affirmed) that Plaintiff’s due process claim be dismissed. (1) The Magistrate Judge agreed with the School Board that Plaintiff had no property interest or constitutional right to continued employment. The Magistrate rejected Plaintiff’s claim that because he obtained a teacher’s certificate – which he said was at the prompting of the school administration – he was entitled to the teacher grievance process. (2) The Magistrate recited the Board of Education regulations defining a teacher, including the definition of teacher for purposes of the teacher grievance procedure. “Plaintiff’s Amended Complaint never alleges that his position was considered a ‘teacher’ under Virginia law. Further, Plaintiff fails to plead the existence of a continuing term contract.”

What is the Process? Pettis v. Nottoway County School Board (Cont’d) Holding: (3) “The Code of Virginia § 22.1-79(6) provides that school employees be ‘afford[ed] a timely and fair method of the resolution of disputes between the school board and such employees regarding dismissal’ and the resolution ‘shall be consistent with he provisions of the Board of Education’s procedures for adjusting grievances.’ The final step of the procedure calls for ‘a final decision . . . by the school board,” but requires no hearing.” (Emphasis added) (4) “It cannot be inferred from Plaintiff’s Complaint that his position constituted that of a teacher who was entitled to continued employment or a hearing following discharge from his position.” (Emphasis added)

What is the Process? Sample #1 – Classified Employee POST-DEPRIVATION Dismissal Procedure (1) Notice to Employee of Dismissal and Right to Hearing with Superintendent’s Designee (Attach Form) (a) Employee requests hearing within 15 days (b) If employee requests, Superintendent’s designee shall provide reasons for dismissal in writing or personal interview (c) Upon employee request, administration shall provide opportunity to inspect or copy file within ten business days (2) Hearing Before Superintendent’s Designee (a) Held within ten days of request for hearing (b) Employee and administration entitled to representation by legal counsel (c) Designee has right to limit number of witnesses and length of hearing (d) Designee provides written response within five business days (e) Hearing recorded/court reporter (f) If Superintendent decides to reinstate, employee receives back pay and benefits

What is Process? Sample #1 (3) Decision of the School Board (a) Employee files written grievance appeal within fifteen business days after receipt of Designee’s decision (b) School Board shall meet in closed session at a regularly scheduled Board meeting occurring no more than thirty (30) days after employee files appeal (c) School Board provides notice to employee of date it will meet (d) Employee and administration provide School Board a position paper summarizing their respective positions and any document which they intend to submit at least ten days in advance of the hearing; each submits rebuttal documents within five days of the hearing (e) School Board bases its decision on notice of appeal, written grievance, transcript of Designee’s hearing, written response of Designee and any other relevant documents submitted by the parties; issues written decision within thirty (30) days after the meeting (f) School Board may affirm, modify or reverse the Designee’s decision, and the School Board’s decision is final. If reinstated, employee receives backpay.

What is the Process? Sample #2 – Classified Employee Dismissal Grievance Procedure (1) Notice of Proposed Action (a) Including a statement of the reasons by the employee’s supervisor or appropriate administrator (b) Advising employee he may file a written request for a hearing with the superintendent (or designee) within five days of the notice (2) Hearing Before Superintendent/Designee (a) Must be held within ten working days of receipt of the request; written or oral notice of the hearing provided to the employee at least five days before the hearing (b) Employee and administration may be represented by legal counsel; hearing is private, and superintendent/designee shall have full discretion over the conduct of the hearing. (c) Superintendent/designee shall compile the record presented. (d) Superintendent/designee shall give the employee a written decision within five working days of the hearing; if the Superintendent/designee accepts the recommendation of dismissal, the decision shall specify the effective date of the action, which may be immediate

What is the Process? Sample #2 (3) Review by School Board (a) Employee may request a review of the Superintendent/designee’s decision by the School Board within five days of the decision (b) School Board shall make its decision based upon a review of the record from the Superintendent/designee’s hearing (c) School Board shall render its decision within thirty (30) days of the request, which decision is final.

What is the Process? Sample #3 Similar to above, except last step is a HEARING before the School Board, with final decision due thirty (30) days after School Board hearing and with School Board retaining exclusive authority.

Contracts Required? Contracts are required for: Teachers: Virginia Code § 22.1-302 "Teacher" means a person (i) who is regularly employed full time as a teacher, visiting teacher/school social worker, guidance counselor, or librarian, and (ii) who holds a valid teaching license. (8VAC20-440-10) Bus Drivers: “A written employment agreement shall be made by the school board with all regular school bus drivers before they begin their duties. Substitute drivers shall meet the requirements prescribed for regular bus drivers and shall be approved and paid by the local school board.” (8VAC20-70-50) Division Superintendents: Virginia Code § 22.1-60 Others?

Suspensions As with teachers, the suspension of Classified Employees is governed by Virginia Code § 22.1-315: A. A teacher or other public 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 employee has been charged by summons, warrant, indictment or information with the commission of a felony; a misdemeanor involving (i) sexual assault as established in Article 7 (§ 18.2-61 et seq.) of Chapter 4 of Title 18.2, (ii) obscenity and related offenses as established in Article 5 (§ 18.2-372 et seq.) of Chapter 8 of Title 18.2, (iii) drugs as established in Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2, (iv) moral turpitude, or (v) the physical or sexual abuse or neglect of a child; or an equivalent offense in another state. Except when a teacher or school employee is suspended because of being charged by summons, warrant, indictment or information with the commission of one of the above- listed criminal offenses, a division superintendent or appropriate central office designee shall not suspend a teacher or school employee for longer than sixty days and shall not suspend a teacher or school employee for a period in excess of five days unless such teacher or school 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 §§ 22.1- 311 and 22.1-313, if applicable. Any teacher or other school employee so suspended shall continue to receive his or her then applicable salary unless and until the school board, after a hearing, determines otherwise. No teacher or school employee shall be suspended solely on the basis of his or her refusal to submit to a polygraph examination requested by the school board.

Suspensions Virginia Code § 22.1-315(A) does NOT require a school board to hold a hearing before suspending a non-teaching employee without pay for fewer than five days. Payne v. Fairfax Cty. Sch. Bd., 288 Va. 432 (2014)

Other Avenues for Redress Equal Employment Opportunity Commission Complaints * Federal, State and Local Non-discrimination Statutes (Title VI, Title VII, ADA, ADEA, Virginia Human Rights Act, etc.) Federal or State Court *Discrimination Claims * Constitutional Due Process Claims Virginia Employment Commission Office of Civil Rights

Progressive Discipline Informal Conferences/Meetings * Verbal Warnings Formal Conferences * Written Warnings * Letters of Reprimand Suspensions Dismissals/Non-Renewals

Don’t Forget Part II Grievances Virginia Code § 22.1-79(6): “ . . . Except in the case of dismissal, suspension, or other disciplinary action, the grievance procedure prescribed by the Board of Education pursuant to § 22.1-308 shall apply to all full-time employees of a school board, except supervisory employees.” 8VAC20-90-20. Purpose of Part II of This Grievance Procedure. Part II. 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. 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.

Good Documentation Identify the Purpose/Nature of the Communication (e.g., Letter of Reprimand) Factually Specific and Impact on Performance Previous Offenses and Efforts (if any) to Remediate Identify the Policy/Regulation/Legal Authority Supporting the Documentation Set Expectations and Potential Further Consequences Date - Document Timely CC Appropriate Personnel Acknowledgment of Receipt

Good Documentation Consistency is Paramount