Observations from an Impartial Hearing Officer (IHO) Mark S. Kapocius, M.Ed., J.D. WASBO/WASPA School Personnel Academy.

Transcription

1 Observations from an Impartial Hearing Officer (IHO) Mark S. Kapocius, M.Ed., J.D. WASBO/WASPA School Personnel Academy December 4, 2013 I. Background Why am I conducting hearings? a. Served as a municipal judge since 2008 (Village of Greendale) a. Served as a substitute judge in other municipalities, including Milwaukee b. Presided over hundreds of trials & motion hearings c. In municipal court, all bench trials (no juries) 1. Must rule on all evidentiary objections and pretrial issues d. Render mostly oral decisions; some written b. Public sector (school) HR experience in multiple districts c. Former counselor/coach at the middle and high school level II. Why conduct a hearing? a. The law a. A provision of ACT 10 b. Codified as Wis. Stat A local governmental unit that does not have a civil service system on June 29, 2011, shall establish a grievance system not later than October 1, any grievance procedure that is created under this subsection, shall contain at least all of the following provisions: a. A grievance procedure that addresses employee terminations. b. Employee discipline. c. Workplace safety. 3. The grievance procedure shall contain at least all of the following elements: a. A written document specifying the process that a grievant and an employer must follow. 1

2 III. b. A hearing before an impartial hearing officer, c. And an appeal process in which the highest level of appeal is the governing body of the local governmental unit. b. Board policies in accordance with the law a. Requirements of a board policy will vary by district Process of a Hearing a. IHO is generally retained by the district. b. Pre hearing steps: a. Letter from IHO to grievant & district official outlining the process b. Parties are encouraged to stipulate to certain facts and exhibits in advance of the hearing. c. Participants a. Districts usually represented by counsel b. Employee/grievants usually represented by UniServ director or counsel d. Hearing a. Organize space & facility (see Exhibit 1)* 1. Witness stand should be visible to everyone b. Introduce the process and answer questions c. Sequester any witnesses d. District administration presents case in chief e. Swear in anyone that will testify f. Any witness are subject to cross examination g. Grievant presents case in chief h. Witnesses are subject to cross examination i. Both sides present closing statements (summary of the evidence presented) j. Any evidentiary objections may be made during the case in chief; IHO makes a ruling e. Comparison with grievance/trials a. Similar to a municipal court trial 1. Bench decision 2. No court reporter 3. Create a record 2

3 f. Evidentiary issues a. Relevant evidence means: 1. evidence having any tendency to make the existence of any fact, 2. that is of consequence to the determination of the action, 3. more probable or less probable than it would be without the evidence. a. Wis. Stat b. Exclusion of evidence: 1. Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. a. Wis. Stat c. Character evidence: 1. the person s character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion (with exceptions) a. Wis. Stat b. Generally best to avoid character based issues IV. IHO s written recommendations a. Most school board policies limit the authority of the IHO to the following: a. Recitation of the facts, b. Written recommendation, 1. Sustain the grievance, or; 2. Deny the grievance. c. Appeal an adverse decision to the Board, d. Relevant timelines. b. Use of the written recommendation for future action V. What is the IHO looking for? a. Nexus between the alleged event(s) and the applicable standard a. If the policy says that arbitrary and capricious means in the best interests of students then prove how the administration s actions (relative to the 3

4 VI. VII. VIII. grievant) were in the best interests of the students, and the employee s actions/performance were not in the best interests of students b. Build a foundation: a. Don t assume the IHO knows the employee or administrator b. Or knows the history of the district and grievant c. Context matters how did we get here? 1. How long has grievant worked for the district? In what capacity? What happened? How do you know? How did you investigate? 2. Show the good, bad, and the ugly c. As the foundation is being built, always focus of the goal: were the administration s actions arbitrary and capricious? Benefits/Costs of a Hearing (from the District s P.O.V.) a. Benefits a. Get a 3 rd party opinion b. Takes some pressure off the HR/supervisor c. Obtain a written recommendation that can be used for other purposes d. Creates a record that can used to defend against any claim of discrimination or retaliation e. Gives an employee an opportunity to be heard by a 3 rd party neutral b. Costs to the Employer a. Time & money b. Potential rift between supervisor/employee Bills & other considerations a. Billed on an hourly basis; cost will generally be less than $500 per case depending on the length of the hearing and the complexity of the case Final Thoughts & Observations a. Creating a whole new process without much statutory guidance b. Using comparable situations for guidance a. Grievance arbitration b. Municipal court c. Thus far, the process is working as anticipated d. Some concerns: 4

5 a. Jurisdictional issues: 1. Should the IHO be deciding if the administration s actions resulted in employee discipline? b. How will the written recommendations be used? 1. Are they a public record? 2. Will unions use them for other purposes? Blacklisting of certain IHOs c. Will employees be fearful of retaliation for filing a grievance? e. Going forward a. Doubtful we ll see to many workplace safety grievances b. More likely to see grievances for termination from employees who are not subject to statutory contractual protections, such as coaches, aides, clerical c. Is this model preferable to a civil service system? For a HR director, getting away from a just cause standard is worth the costs associated with a grievance procedure. Exhibit 1: Sample Layout for Hearing Witnesses/Observers IHO 5