Session Law

Identifying Information:L. 2003 ch. 052
Other Identifying Information:2003 Senate Bill 119
Tax Type:Other
Brief Description:An Act concerning teachers; relating to hearings provided upon notice of nonrenewal or termination of contracts of employment; amending K.S.A. 72-5438, 72-5440, 76-11a05, 76-11a06, 76-11a07, 76-11a08, 76-11a09, 76-11a10, 76-11a11, 76-11a12, 76-11a13 and 76-11a14 and repealing the existing sections.
Keywords:


Body:

CHAPTER 52

SENATE BILL No. 119


An Act concerning teachers; relating to hearings provided upon notice of nonrenewal or

termination of contracts of employment; amending K.S.A. 72-5438, 72-5440, 76-11a05,

76-11a06, 76-11a07, 76-11a08, 76-11a09, 76-11a10, 76-11a11, 76-11a12, 76-11a13 and


76-11a14 and repealing the existing sections.


Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 72-5438 is hereby amended to read as follows: 72-

5438. (a) Whenever a teacher is given written notice of intention by a

board to not renew or to terminate the contract of the teacher as provided

in K.S.A. 72-5437, and amendments thereto, the written notice of the

proposed nonrenewal or termination shall include: (1) A statement of the

reasons for the proposed nonrenewal or termination,; and (2) a statement

that the teacher may have the matter heard by a hearing officer upon

written request filed with the clerk of the board of education or the board

of control or the secretary of the board of trustees within 15 calendar

days from the date of such notice of nonrenewal or termination.

(b) Upon Within 10 calendar days after the filing of any written re-

quest of a teacher to be heard as provided in subsection (a), within 10

calendar days thereafter, the board shall notify the commissioner of ed-

ucation that a list of qualified hearing officers is required. Such notice

shall contain the mailing address of the teacher. Within 10 days after

receipt of notification from the board, the commissioner shall provide to

the board and to the teacher, a list of nine five randomly selected, qual-

ified hearing officers.

(c) Within 5 five days after receiving the list from the commissioner,

each party shall eliminate four two names from the list, and the remaining

individual on the list shall serve as hearing officer. In the process of elim-

ination, each party shall eliminate no more than one name at a time, the

parties alternating after each name has been eliminated. The first name

to be eliminated shall be chosen by the teacher, within 5 five days after

the teacher receives the list. The process of elimination shall be com-

pleted within 5 five days thereafter.

(d) Either party may request that one new list be provided within 5

five days after receiving the list. If such a request is made, the party

making the request shall notify the commissioner and the other party,

and the commissioner shall generate a new list and distribute it to the

parties in the same manner as the original list.

(e) In lieu of using the process provided in subsections (b) and (c), if

the parties agree, they may make a request to the American Arbitration

Association for an arbitrator to serve as the hearing officer. Any party

desiring to use this alternative procedure shall so notify the other party

in the notice required under subsection (a). If the parties agree to use

this procedure, the parties shall make a joint request to the American

Arbitration Association for a hearing officer within 10 days after the

teacher files a request for a hearing. If the parties choose to use this

procedure, the parties shall each pay one-half of the cost of the arbitrator

and of the arbitrator's expenses.

(f) The commissioner of education shall compile and maintain a list

of hearing officers comprised of residents of this state who are attorneys

at law. Such list shall include a statement of the qualifications of each

hearing officer.

(g) Attorneys interested in serving as hearing officers under the pro-

visions of this act shall submit an application to the commissioner of ed-

ucation. The commissioner shall determine if the applicant is eligible to

serve as a hearing officer pursuant to the provisions of subsection (h).

(h) An attorney shall be eligible for appointment to the list if the

attorney has: (1) Completed a minimum of 10 hours of continuing legal

education credit in the area of education law, due process, administrative

law or employment law within the past five years; or (2) previously served

as the chairperson of a due process hearing committee prior to the ef-

fective date of this act. An attorney shall not be eligible for appointment

to the list if the attorney has been employed to represent a board or a

teacher in a due process hearing within the past five years.

Sec. 2. K.S.A. 72-5440 is hereby amended to read as follows: 72-

5440. (a) For appearing before the hearing officer at a hearing, witnesses

who are subpoenaed shall receive $5 per day and mileage at the rate

prescribed under K.S.A. 75-3203, and amendments thereto, for miles

actually traveled in going to and returning from attendance at the hearing.

The fees and mileage for the attendance of witnesses shall be paid by the

party calling the witness, except that fees and mileage of witnesses sub-

poenaed by the hearing officer shall be paid by the board. Witnesses

voluntarily appearing before the hearing officer shall not receive fees or

mileage for attendance at the hearing.

(b) The hearing officer shall be paid $240 per diem compensation,

or a portion thereof, for each day of actual attendance at the hearing or

for any meeting held for the purpose of performing compensation for

time spent in actual attendance at the hearing and for time spent in per-

formance of the hearing officer's official duties. In addition to compen-

sation, the hearing officer shall be paid subsistence allowances, mileage,

and other expenses as provided in K.S.A. 75-3223, and amendments

thereto. The costs for the services of the hearing officer shall be paid by

the board.

(c) Testimony at a hearing shall be recorded by a certified shorthand

reporter. The cost for the certified shorthand reporter's services shall be

paid by the board. The transcript testimony shall be transcribed if the

decision of the hearing officer is appealed to the district court, or if either

party requests transcription. The appellant or the party making the re-

quest shall pay for the cost of transcription. If both parties jointly request

that the transcript testimony be transcribed at the hearing level, the par-

ties shall each pay one-half of the cost of transcription.

(d) Each party shall be responsible for the payment of its own attor-

ney fees.

(e) All costs of a hearing which are not specifically allocated in this

section shall be paid by the board.

Section 3. K.S.A. 76-11a05 is hereby amended to read as follows: 76-

11a05. All contracts of employment of teachers shall be deemed to con-

tinue for the next succeeding school year unless written notice of termi-

nation or nonrenewal is served as provided in this section. Written notice

to terminate a contract may be served by the state board upon any teacher

prior to the time the contract has been completed, and written notice of

intention to nonrenew a contract shall be served by the state board upon

any teacher on or before April 10 May 1. A teacher shall give written

notice to the state board that the teacher does not desire continuation of

the contract on or before May 10 15. Terms of a contract may be changed

at any time by mutual consent of both the teacher and the state board.

Sec. 4. K.S.A. 76-11a06 is hereby amended to read as follows: 76-

11a06. (a) Whenever a teacher is given written notice of intention by the

state board to nonrenew or to terminate the contract of the teacher as

provided in K.S.A. 76-11a05, and amendments thereto, the written notice

of the proposed nonrenewal or termination shall include: (1) A statement

of the reasons for the proposed nonrenewal or termination,; and (2) a

statement that the teacher may have the matter heard by a hearing com-

mittee officer upon written request filed with the commissioner of edu-

cation within 15 days from the date of such notice of nonrenewal or

termination.

(b) The Within 10 calendar days after the filing of a written request

of the by any teacher to be heard shall include therein a designation of

one hearing committee member. Upon the filing of any such request as

provided in subsection (a), the state board shall designate, within 15 days

thereafter, one hearing committee member. The two hearing committee

members shall designate a third hearing committee member who shall

be the chairperson and who shall in all cases be a resident of the state of

Kansas. In the event that the two hearing committee members are unable

to agree upon a third hearing committee member within five days after

the designation of the second hearing committee member, a district judge

of the home county of the state school shall appoint, upon application of

the teacher or either of the first two hearing committee members, the

third hearing committee member. Such appointment may be made by

the district judge from a list, which shall be compiled and maintained by

notify the secretary of human resources, of impartial persons who are

representative of the public and who are qualified to serve as hearing

committee members that a list of qualified hearing officers is required.

Such notice shall contain the mailing address of the teacher. Within 10

days after receipt of notification from the state board, the secretary shall

provide to the state board and to the teacher a list of five randomly se-

lected, qualified hearing officers.

(c) Within five days after receiving the list from the secretary of hu-

man resources, each party shall eliminate two names from the list, and

the remaining individual on the list shall serve as hearing officer. In the

process of elimination, each party shall eliminate no more than one name

at a time, the parties alternating after each name has been eliminated.

The first name to be eliminated shall be chosen by the teacher within five

days after the teacher receives the list. The process of elimination shall be

completed within five days thereafter.

(d) Either party may request that one new list be provided within

five days after receiving the original list. If such a request is made, the

party making the request shall notify the secretary of human resources

and the other party, and the secretary shall generate a new list and dis-

tribute it to the parties in the same manner as the original list.

(e) In lieu of using the process provided in subsections (b) through

(d), if the parties agree, they may make a request to the American Arbi-

tration Association for an arbitrator to serve as the hearing officer. Any

party desiring to use this alternative procedure shall so notify the other

party at the time written request for a hearing is filed by the teacher. If

the parties agree to use this procedure, the parties shall make a joint

request to the American Arbitration Association for a hearing officer

within 10 days after the teacher files the request for a hearing. If the

parties choose to use this procedure, the parties shall each pay 1/2 of the

cost of the arbitrator and of the arbitrator's expenses.

(f) The secretary of human resources shall compile and maintain a

list of hearing officers comprised of residents of this state who are attor-

neys at law. Such list shall include a statement of the qualifications of

each hearing officer.

(g) Attorneys interested in serving as hearing officers under the pro-

visions of this act shall submit an application to the secretary of human

resources. The secretary shall determine if the applicant is eligible to serve

as a hearing officer pursuant to the provisions of subsection (h).

(h) An attorney shall be eligible for appointment to the list if the

attorney has: (1) Completed a minimum of 10 hours of continuing legal

education credit in the area of education law, due process, administrative

law or employment law within the past five years; or (2) previously served

as the chairperson of a due process hearing committee prior to the effec-

tive date of this act. An attorney shall not be eligible for appointment to

the list if the attorney has been employed to represent the state board or

a teacher in a due process hearing within the past five years.

Sec. 5. K.S.A. 76-11a07 is hereby amended to read as follows: 76-

11a07. The hearing provided for in under K.S.A. 76-11a06, and amend-

ments thereto, shall commence within 45 calendar days after the hearing

officer is selected unless the hearing officer grants an extension of time.

The hearing shall afford procedural due process, including the following:

(a) The right of each party to have counsel of such party's own choice

present and to receive the advice of such counsel or other person whom

such party may select; and

(b) the right of each party or such party's counsel to cross-examine

any person who provides information for the consideration of the hearing

committee officer, except those persons whose testimony is presented by

affidavit; and

(c) the right of each party to present such party's own witnesses in

person, or their testimony by affidavit or deposition, except that testimony

of a witness by affidavit may be presented only if such witness lives more

than 100 miles from the location of the state school, or is absent from the

state, or is unable to appear because of age, illness, infirmity or impris-

onment. When testimony is presented by affidavit the same shall be

served upon the commissioner of education or the agent of the state board

and upon the teacher in person or by first class mail to the address of the

teacher which is on file with the state board not less than 10 days prior

to presentation to the hearing committee officer; and

(d) the right of the teacher to testify in the teacher's own behalf and

give reasons for the teacher's conduct, and the right of the state board to

present its testimony through such persons as it the state board may call

to testify in its behalf and to give reasons for its actions, rulings or policies;

and

(e) the right of the parties to have an orderly hearing; and

(f) the right of the teacher to a fair and impartial decision based on

substantial evidence.

Sec. 6. K.S.A. 76-11a08 is hereby amended to read as follows: 76-

11a08. (a) For attending appearing before the hearing committee officer

at a hearing, witnesses who are subpoenaed shall receive $5 per day and

mileage at the rate prescribed under K.S.A. 75-3203, and amendments

thereto, for miles actually traveled in going to and returning from attend-

ance at the hearing. The fees and mileage for the attendance of witnesses

shall be borne paid by the party calling the witness, except that fees and

mileage of witnesses subpoenaed by the hearing committee officer shall

be borne equally paid by the parties state board. Witnesses voluntarily

attending appearing before the hearing committee officer shall not re-

ceive fees or mileage for attendance at the hearing.

(b) Each member of the hearing committee shall be paid compen-

sation, subsistence allowances, mileage and other expenses as provided

in K.S.A. 75-3223, and amendments thereto. The costs for the services

of members of the hearing committee shall be borne by the parties as

follows: (1) For each member who is designated by a party, the party

designating the member; and (2) for the third member, by the parties

equally.

(c) Testimony at a hearing may, and upon the request of either party

shall, be taken by a certified shorthand reporter or electronically re-

corded, and shall be transcribed upon request of either party or upon

direction by a court.

(b) The hearing officer shall be paid compensation for each day, or

part thereof, spent in actual attendance at the hearing and for any day,

or part thereof, spent in performance of the hearing officer's official duties.

In addition to compensation, the hearing officer shall be paid subsistence

allowances, mileage, and other expenses as provided in K.S.A. 75-3223,

and amendments thereto. The costs for the services of the hearing officer

shall be paid by the state board.

(c) Testimony at a hearing shall be recorded by a certified shorthand

reporter. The cost for the certified shorthand reporter's services shall be

paid by the state board. The testimony shall be transcribed if the decision

of the hearing officer is appealed to the district court, or if either party

requests transcription. The appellant or the party making the request shall

pay for the cost of transcription. If both parties jointly request that the

testimony be transcribed at the hearing level, the parties shall each pay

1/2 of the cost of transcription.

(d) Each party shall be responsible for the payment of its own attor-

ney fees.

(d) (e) All costs of a hearing which are not specifically allocated in

this section shall be borne equally paid by the parties state board.

Sec. 7. K.S.A. 76-11a09 is hereby amended to read as follows: 76-

11a09. When either party desires to present testimony by affidavit or by

deposition, that party shall furnish to the hearing committee officer the

date on which the testimony shall be taken. A copy of the affidavit or the

deposition shall be furnished to the opposing party within 10 days follow-

ing the taking of any such testimony, and no such testimony shall be

presented at a hearing until the opposite party has had at least 10 days

prior to the date upon which the testimony is to be presented to the

hearing committee officer to rebut such testimony by affidavit or depo-

sition or to submit interrogatories to the affiant or deponent to be an-

swered under oath. Such 10-day period may be extended, for good cause

shown, by the chairperson of the hearing committee officer.

Sec. 8. K.S.A. 76-11a10 is hereby amended to read as follows: 76-

11a10. (a) At any meeting of a The hearing committee, when authorized

by a majority of the committee, any member thereof officer may:

(1) Administer oaths;

(2) issue subpoenas for the attendance and testimony of witnesses

and the production of books, papers and documents relating to any matter

under investigation;

(3) authorize depositions to be taken;

(4) receive evidence and limit lines of questioning and testimony

which are repetitive, cumulative or irrelevant;

(5) call and examine witnesses and introduce into the record docu-

mentary and other evidence;

(6) regulate the course of the hearing and dispose of procedural re-

quests, motions and similar matters; and

(7) take any other action necessary to make the hearing accord with

administrative due process.

(b) Hearings under this act shall not be bound by rules of evidence

whether statutory, common law or adopted by the rules of court; however,

the burden of proof shall initially rest upon the state board in all instances

other than when the allegation is that the teacher's contract has been

terminated or nonrenewed by reason of the teacher having exercised a

constitutional right. All relevant evidence shall be admissible, except that

the hearing committee officer, at its the hearing officer's discretion, may

exclude any evidence if it the hearing officer believes that its the probative

value of such evidence is substantially outweighed by the fact that its

admission will necessitate undue consumption of time.

Sec. 9. K.S.A. 76-11a11 is hereby amended to read as follows: 76-

11a11. (a) Unless otherwise agreed to by both the state board and the

teacher, the hearing committee officer shall render a written opinion de-

cision not later than 30 days after the close of the hearing, setting forth

its the hearing officer's findings of fact and recommendation as to the

determination of the issues. The opinion decision of the hearing com-

mittee officer shall be submitted to the teacher and to the state board.

(b) If The members decision of the hearing committee are unanimous

in their opinion, the state board shall adopt the opinion as its decision in

the matter and such decision officer shall be final, subject to appeal to

the district court as provided in K.S.A. 60-2101, and amendments thereto

review in accordance with the act for judicial review and civil enforcement

of agency actions.

(c) If the members of the hearing committee are not unanimous in

their opinion, the state board shall consider the opinion, hear oral argu-

ments or receive written briefs from the teacher and a representative of

the state school, and decide whether the contract of the teacher shall be

renewed or terminated. The decision of the state board under this sub-

section shall be submitted to the teacher not later than 30 days after the

close of oral argument or submission of written briefs and such decision

shall be final, subject to appeal to the district court as provided by K.S.A.

60-2101, and amendments thereto.

Sec. 10. K.S.A. 76-11a12 is hereby amended to read as follows: 76-

11a12. Nothing in this act, or in any act amendatory thereof or supple-

mental thereto, shall be construed to create any right, or to authorize the

creation of any right, which is not subject to amendment or nullification

by act of the legislature. Nothing in this act and no amendment or repeal

of this act or any part thereof shall be construed to constitute an impair-

ment of any existing contractual right.

Sec. 11. K.S.A. 76-11a13 is hereby amended to read as follows: 76-

11a13. (a) (1) Subject to the provisions of K.S.A. 76-11a14 subsection (b),

the provisions of K.S.A. 76-11a06 through 76-11a11, and amendments

thereto, apply only to: (1) (A) Teachers who have completed not less than

two three consecutive years of employment, prior to the effective date of

this act and been offered a contract for a fourth year of employment, at

the state school in which the teacher is currently employed; and (2) (B)

teachers who have completed one year of employment, prior to the ef-

fective date of this act and, consecutively thereto, one year of employ-

ment, after the effective date of this act, at the state school in which the

teacher is currently employed; and (3) teachers who have completed not

less than three two consecutive years of employment, after the effective

date of this act and been offered a contract for a third year of employment,

at the state school in which the teacher is currently employed; and (4)

teachers who have completed not less than two consecutive years of em-

ployment, after the effective date of this act, at the state school in which

the teacher is currently employed if at any time prior to the current

employment the teacher has completed the years of employment require-

ment of provision (1), (2) or (3) subpart (A) at the other state school.

(b) (2) The state board may waive, at any time, the years of employ-

ment requirements of subsection (a) provision (1) for any teachers em-

ployed at a state school.

(3) The provisions of this subsection are subject to the provisions of

K.S.A. 76-11a14, and amendments thereto.

(b) The provisions of K.S.A. 76-11a06 through 76-11a11, and amend-

ments thereto, do not apply to any teacher whose certificate has been

nonrenewed or revoked by the state board for the reason that the teacher:

(1) Has been convicted of a felony under the uniform controlled substances

act; (2) has been convicted of a felony described in any section of article

34 of chapter 21 of the Kansas Statutes Annotated or an act described in

K.S.A. 21-3412 and amendments thereto, if the victim is a minor or stu-

dent; (3) has been convicted of a felony described in any section of article

35 of chapter 21 of the Kansas Statutes Annotated, or has been convicted

of an act described in K.S.A. 21-3517 and amendments thereto, if the

victim is a minor or student; (4) has been convicted of any act described

in any section of article 36 of chapter 21 of the Kansas Statutes Annotated;

(5) has been convicted of a felony described in article 37 of chapter 21 of

the Kansas Statutes Annotated; (6) has been convicted of an attempt under

K.S.A. 21-3301, and amendments thereto, to commit any act specified in

this subsection; (7) has been convicted of any act which is described in

K.S.A. 21-4301, 21-4301a or 21-4301c, and amendments thereto; (8) has

been convicted in another state or by the federal government of an act

similar to any act described in this subsection; or (9) has entered into a

criminal diversion agreement after having been charged with any offense

described in this subsection.

Sec. 12. K.S.A. 76-11a14 is hereby amended to read as follows: 76-

11a14. In the event that any teacher alleges that the teacher's contract

has been nonrenewed or terminated by reason of the teacher having ex-

ercised a constitutional right, the following procedure shall be imple-

mented:

(a) The teacher alleging an abridgment by the state board of a con-

stitutionally protected right shall notify the state board of the allegation

within 15 days after receiving the notice of intention to nonrenew or

terminate the teacher's contract. Such notification shall specify the nature

of the activity protected, and the times, dates, and places of such activity;

(b) the hearing committee officer provided for by K.S.A. 76-11a06,

and amendments thereto, shall thereupon be constituted selected and shall

decide if there is substantial evidence to support the teacher's claim that

the teacher's exercise of a constitutionally protected right was the reason

for the nonrenewal or termination;

(c) if the hearing committee officer determines that there is no sub-

stantial evidence to substantiate the teacher's claim of a violation of a

constitutionally protected right, the hearing committee shall dissolve, and

the state board's decision to nonrenew or terminate the contract shall

stand;

(d) if the hearing committee officer determines that there is substan-

tial evidence to support the teacher's claim, the state board shall be re-

quired to submit to the committee hearing officer any reasons which may

have been involved in the nonrenewal or termination;

(e) if the state board has presents any substantial evidence to support

its reasons, the state board's decision not to renew or to terminate the

contract shall be upheld.

New Sec. 13. If any clause, paragraph, subsection or section of this

act shall be held invalid or unconstitutional, it shall be conclusively pre-

sumed that the legislature would have enacted the remainder of the act

without such invalid or unconstitutional clause, paragraph, subsection or

section.

Sec. 14. K.S.A. 72-5438, 72-5440, 76-11a05, 76-11a06, 76-11a07, 76-

11a08, 76-11a09, 76-11a10, 76-11a11, 76-11a12, 76-11a13 and 76-11a14

are hereby repealed.

Sec. 15. This act shall take effect and be in force from and after its

publication in the statute book.

Approved April 14, 2002.


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Date Composed: 10/29/2003 Date Modified: 10/29/2003