Assembly Bill No. 354–Assemblywoman Giunchigliani

 

March 17, 2003

____________

 

Referred to Committee on Education

 

SUMMARY—Revises provisions governing employees of a school district. (BDR 34‑686)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: No.

 

~

 

EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to employees of a school district; prescribing a time by which hearings must be commenced for licensed and unlicensed employees of a school district; providing that employees must not be required to seek alternative employment and mitigate damages during the pendency of proceedings; requiring an administrator to provide notice to an employee of a complaint against the employee by a parent or pupil; revising provisions governing the contents of a notice of admonition issued to a licensed employee; revising provisions governing the selection of hearing officers and conduct of hearings for licensed employees; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN

SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

 

    Section 1.  Chapter 391 of NRS is hereby amended by adding thereto the provisions set forth as sections 2 to 5, inclusive, of this act.

1-1  Sec. 2.  1.  Except as otherwise provided in subsection 3, an

1-2  unlicensed employee of a school district who is dismissed,

1-3  suspended without pay or demoted is entitled to a hearing within

1-4  90 days after he is notified of his dismissal, suspension or

1-5  demotion if:

2-1  (a) The employee is governed by a collective bargaining

2-2  agreement negotiated pursuant to chapter 288 of NRS;

2-3  (b) The collective bargaining agreement establishes a

2-4  grievance procedure that includes the right to a hearing before an

2-5  arbitrator in such a case; and

2-6  (c) The employee demands such a hearing and otherwise

2-7  complies with the requirements of the grievance procedure.

2-8  2.  The commencement of a hearing within the 90-day period

2-9  shall be deemed to comply with subsection 1, regardless of

2-10  whether the hearing is concluded within that period.

2-11      3.  Compliance with the 90-day limitation prescribed by

2-12  subsection 1 is not required if:

2-13      (a) The superintendent of schools of the school district, or his

2-14  designee, and the employee agree in writing to waive the

2-15  limitation; or

2-16      (b) The arbitrator excuses compliance with the limitation

2-17  pursuant to a motion supported by an affidavit and for good cause

2-18  shown. For the purposes of this paragraph, the workload or

2-19  schedules of an attorney or the vacation schedule of a witness does

2-20  not constitute good cause except in extreme and unforeseeable

2-21  circumstances.

2-22      4.  If an employee, through no fault of his own, is not

2-23  afforded a hearing within the time prescribed by subsection 1 and

2-24  the 90-day limitation period has not been waived or excused

2-25  pursuant to subsection 3, the employee is entitled forthwith to be

2-26  reinstated by the school district and made whole for any loss of

2-27  pay and benefits, plus interest, without any deduction or setoff and

2-28  without any requirement that the employee had to seek alternative

2-29  employment or otherwise attempt to mitigate his damages.

2-30  However, if the employee seeks alternative employment, he is

2-31  entitled to recover the expenses, if any, reasonably incurred by

2-32  him in attempting to secure the alternative employment. In

2-33  addition, the school district shall immediately remove from the

2-34  personnel records of the employee any reference to the dismissal,

2-35  suspension or demotion.

2-36      Sec. 3.  In any proceeding governed by section 2 of this act, if

2-37  the arbitrator determines that the dismissal, demotion or

2-38  suspension of an unlicensed employee should be modified or

2-39  overturned, the employee is entitled to be made whole for any pay

2-40  and benefits lost during the pendency of the proceeding, without

2-41  any deduction or setoff and without any requirement that the

2-42  employee had to seek alternative employment or otherwise attempt

2-43  to mitigate his damages. However, if the employee seeks

2-44  alternative employment, he is entitled to recover the expenses, if

3-1  any, reasonably incurred by him in attempting to secure the

3-2  alternative employment.

3-3  Sec. 4.  1.  If an administrator receives a written complaint

3-4  from a parent, legal guardian or pupil regarding a teacher or

3-5  other licensed or unlicensed employee of a school district, the

3-6  administrator shall provide the employee a copy of the complaint.

3-7  If the administrator decides to pursue the matter by making

3-8  inquiries or conducting an investigation, the administrator shall

3-9  provide written notice to the employee at least 3 days before he

3-10  makes the inquiries or conducts the investigation. The employee is

3-11  entitled to:

3-12      (a) Have a representative present while the inquiries are made

3-13  or the investigation is conducted;

3-14      (b) Make his own inquiries or conduct his own investigation,

3-15  or both; and

3-16      (c) Respond to the results of the inquiries or investigation

3-17  obtained by the administrator.

3-18      2.  The written notice provided pursuant to subsection 1 must

3-19  include the rights of the employee set forth in paragraphs (a), (b)

3-20  and (c) of that subsection.

3-21      3.  Upon resolution of a complaint, any reference to the

3-22  complaint or the inquiries or investigation related to the complaint

3-23  must be removed from the personnel records of the employee

3-24  within 6 months after the resolution.

3-25      Sec. 5.  If a hearing officer determines that a

3-26  recommendation to demote, dismiss or not reemploy a licensed

3-27  employee should be modified or overturned, the employee is

3-28  entitled to be made whole for any pay and benefits lost, plus

3-29  interest, during the pendency of the proceeding, without any

3-30  deduction or setoff and without any requirement that the employee

3-31  had to seek alternative employment or otherwise attempt to

3-32  mitigate his damages. However, if the employee seeks alternative

3-33  employment, he is entitled to recover the expenses, if any,

3-34  reasonably incurred by him in attempting to secure the alternative

3-35  employment.

3-36      Sec. 6.  NRS 391.311 is hereby amended to read as follows:

3-37      391.311  As used in NRS 391.311 to 391.3197, inclusive, and

3-38  section 5 of this act, unless the context otherwise requires:

3-39      1.  “Administrator” means any employee who holds a license as

3-40  an administrator and who is employed in that capacity by a school

3-41  district.

3-42      2.  “Board” means the board of trustees of the school district in

3-43  which a licensed employee affected by NRS 391.311 to 391.3197,

3-44  inclusive, and section 5 of this act is employed.

4-1  3.  “Collective bargaining agreement” means a collective

4-2  bargaining agreement negotiated pursuant to chapter 288 of NRS

4-3  between a board and an employee organization representing

4-4  licensed employees of the school district.

4-5  4.  “Demotion” means demotion of an administrator to a

4-6  position of lesser rank, responsibility or pay and does not include

4-7  transfer or reassignment for purposes of an administrative

4-8  reorganization.

4-9  [4.] 5.  “Immorality” means an act forbidden by NRS 200.366,

4-10  200.368, 200.400, 200.508, 201.180, 201.190, 201.210, 201.220,

4-11  201.230, 201.265 or 207.260.

4-12      [5.] 6.  “Postprobationary employee” means an administrator or

4-13  a teacher who has completed the probationary period as provided in

4-14  NRS 391.3197 and has been given notice of reemployment.

4-15      [6.] 7.  “Probationary employee” means an administrator or a

4-16  teacher who is employed for the period set forth in NRS 391.3197.

4-17      [7.] 8.  “Superintendent” means the superintendent of a school

4-18  district or a person designated by the board or superintendent to act

4-19  as superintendent during the absence of the superintendent.

4-20      [8.] 9.  “Teacher” means a licensed employee the majority of

4-21  whose working time is devoted to the rendering of direct

4-22  educational service to pupils of a school district.

4-23      Sec. 7.  NRS 391.3116 is hereby amended to read as follows:

4-24      391.3116  [The]

4-25      1.  Except as otherwise provided in this section, the provisions

4-26  of NRS 391.311 to 391.3197, inclusive, and section 5 of this act do

4-27  not apply to a teacher, administrator, or other licensed employee

4-28  [who has entered into a contract with the board negotiated pursuant

4-29  to chapter 288 of NRS] whose employment is governed by a

4-30  collective bargaining agreement if the [contract] agreement

4-31  contains separate provisions relating to the board’s right to demote,

4-32  suspend, dismiss or refuse to reemploy the employee . [or demote

4-33  an administrator.]

4-34      2.  Except as otherwise provided in subsection 3 of this section

4-35  and subsection 3 of NRS 391.318, the parties to a collective

4-36  bargaining agreement may by that agreement modify, adopt or

4-37  incorporate by reference, in whole or in part, the provisions of

4-38  NRS 391.311 to 391.3197, inclusive, and section 5 of this act.

4-39      3.  The time limitations set forth in NRS 391.311 to 391.3197,

4-40  inclusive, and section 5 of this act, relating to the conduct of a

4-41  hearing before a hearing officer are applicable to a teacher,

4-42  administrator or other licensed employee of a school district,

4-43  regardless of whether his employment is governed by a collective

4-44  agreement. If such a collective bargaining agreement provides for

4-45  a hearing before an arbitrator in any case involving the demotion,

5-1  suspension, dismissal or refusal to reemploy a licensed employee,

5-2  the arbitrator shall comply with the time limitations set forth in

5-3  NRS 391.311 to 391.3197, inclusive, and section 5 of this act as

5-4  they apply to a hearing officer.

5-5  Sec. 8.  NRS 391.313 is hereby amended to read as follows:

5-6  391.313  1.  Whenever an administrator charged with

5-7  supervision of a licensed employee believes it is necessary to

5-8  admonish the employee for a reason that he believes may lead to

5-9  demotion, dismissal or cause the employee not to be reemployed

5-10  under the provisions of NRS 391.312, he shall:

5-11      (a) Except as otherwise provided in subsection 2, within 7 days

5-12  bring the matter to the attention of the employee involved, in

5-13  writing, stating the [reasons] :

5-14          (1) Reasons for the admonition and that it may lead to his

5-15  demotion, dismissal or a refusal to reemploy him[, and make] ; and

5-16          (2) Standards the employee must meet to improve.

5-17      (b) Make a reasonable effort to assist the employee to correct

5-18  whatever appears to be the cause for his potential demotion,

5-19  dismissal or a potential recommendation not to reemploy him . [;

5-20  and

5-21      (b) ] The administrator shall keep a written record of the

5-22  reasonable efforts made to assist the employee.

5-23      (c) Except as otherwise provided in NRS 391.314, allow

5-24  reasonable time for improvement, which must not exceed 3 months

5-25  for the first admonition.

5-26  An admonition issued to a licensed employee who, within the time

5-27  granted for improvement, has met the standards set for him by the

5-28  administrator who issued the admonition must be removed from the

5-29  records of the employee together with all notations and indications

5-30  of its having been issued. The admonition must be removed from

5-31  the records of the employee not later than 3 years after it is issued.

5-32      2.  An administrator need not admonish an employee pursuant

5-33  to paragraph (a) of subsection 1 if his employment will be

5-34  terminated pursuant to NRS 391.3197. If by February 15 of the first

5-35  or second year of his probationary period a probationary employee

5-36  does not receive a written notice pursuant to subsection 4 of NRS

5-37  391.3125 of a potential decision not to reemploy him, he must

5-38  receive an admonition before any such decision is made.

5-39      3.  A licensed employee is subject to immediate dismissal or a

5-40  refusal to reemploy according to the procedures provided in NRS

5-41  391.311 to 391.3197, inclusive, and section 5 of this act without the

5-42  admonition required by this section, on grounds contained in

5-43  paragraphs (b), (f), (g), and (h) [and (p)] of subsection 1 of

5-44  NRS 391.312.

 

6-1  Sec. 9.  NRS 391.314 is hereby amended to read as follows:

6-2  391.314  1.  If a superintendent has reason to believe that

6-3  cause exists for the dismissal of a licensed employee and he is of the

6-4  opinion that the immediate suspension of the employee is necessary

6-5  in the best interests of the pupils in the district, the superintendent

6-6  may suspend the employee without notice and without a hearing.

6-7  Notwithstanding the provisions of NRS 391.312, a superintendent

6-8  may suspend a licensed employee who has been officially charged

6-9  but not yet convicted of a felony or a crime involving moral

6-10  turpitude or immorality. If the charge is dismissed or if the

6-11  employee is found not guilty, he must be reinstated with back pay,

6-12  plus interest, and normal seniority. The superintendent shall notify

6-13  the employee in writing of the suspension.

6-14      2.  Within 5 days after a suspension becomes effective, the

6-15  superintendent shall begin proceedings pursuant to the provisions of

6-16  NRS 391.312 to 391.3196, inclusive, to effect the employee’s

6-17  dismissal. The employee is entitled to continue to receive his salary

6-18  and other benefits after the suspension becomes effective until the

6-19  date on which the dismissal proceedings are commenced. The

6-20  superintendent may recommend that an employee who has been

6-21  charged with a felony or a crime involving immorality be dismissed

6-22  for another ground set forth in NRS 391.312.

6-23      3.  [If sufficient grounds for dismissal do not exist, the

6-24  employee must be reinstated with full compensation, plus interest.

6-25      4.] A licensed employee who furnishes to the school district a

6-26  bond or other security which is acceptable to the board as a

6-27  guarantee that he will repay any amounts paid to him pursuant to

6-28  this subsection as salary during a period of suspension is entitled to

6-29  continue to receive his salary from the date on which the dismissal

6-30  proceedings are commenced until the decision of the board or the

6-31  report of the hearing officer, if the report is final and binding. The

6-32  board shall not unreasonably refuse to accept security other than a

6-33  bond. An employee who receives salary pursuant to this subsection

6-34  shall repay it if he is dismissed or not reemployed as a result of a

6-35  decision of the board or a report of a hearing officer.

6-36      [5.] 4.  A licensed employee who is convicted of a crime which

6-37  requires registration pursuant to NRS 179D.200 to 179D.290,

6-38  inclusive, or 179D.350 to 179D.550, inclusive, or is convicted of an

6-39  act forbidden by NRS 200.508, 201.190 or 201.265 forfeits all rights

6-40  of employment from the date of his arrest.

6-41      [6.] 5.  A licensed employee who is convicted of any crime and

6-42  who is sentenced to and serves any sentence of imprisonment

6-43  forfeits all rights of employment from the date of his arrest or the

6-44  date on which his employment terminated, whichever is later.

7-1  [7.] 6.  A licensed employee who is charged with a felony or a

7-2  crime involving immorality or moral turpitude and who waives his

7-3  right to a speedy trial while suspended may receive no more than 12

7-4  months of back pay and seniority upon reinstatement if he is found

7-5  not guilty or the charges are dismissed, unless proceedings have

7-6  been begun to dismiss the employee upon one of the other grounds

7-7  set forth in NRS 391.312.

7-8  [8.] 7.  A superintendent may discipline a licensed employee

7-9  by suspending the employee with loss of pay at any time after a

7-10  hearing has been held which affords the due process provided for in

7-11  this chapter. The grounds for suspension are the same as the grounds

7-12  contained in NRS 391.312. An employee may be suspended more

7-13  than once during the employee’s contract year, but the total number

7-14  of days of suspension may not exceed 20 in 1 contract year. Unless

7-15  circumstances require otherwise, the suspensions must be

7-16  progressively longer.

7-17      Sec. 10.  NRS 391.3161 is hereby amended to read as follows:

7-18      391.3161  1.  There is hereby created a list of hearing officers

7-19  comprised of residents of this state who are attorneys at law. The

7-20  State Board shall make appointments to the list after nominations

7-21  have been made by the State Bar of Nevada and the Nevada Trial

7-22  Lawyers Association. Each nominee appointed to the list must have

7-23  completed a course of instruction in administrative law, relating to

7-24  the provisions of this chapter, offered by the State Board. This

7-25  course must consist of at least 4 hours of instruction in a classroom.

7-26      2.  Each appointment to the list is for a term of 6 years or until

7-27  resignation or removal for cause by the State Board. Vacancies must

7-28  be filled in the same manner as original appointments.

7-29      3.  Hearing officers may be selected from a list provided by the

7-30  American Arbitration Association of arbitrators who are available

7-31  upon request, if:

7-32      (a) The number of names on the list of qualified, trained hearing

7-33  officers falls below 10; [and] or

7-34      (b) The employee and the superintendent have so agreed in

7-35  writing at least 5 school days before the list is requested.

7-36  Selection of a hearing officer through the services of the American

7-37  Arbitration Association must be accomplished in the same manner

7-38  as described in subsection 2 of NRS 288.200. The employee and the

7-39  board shall each pay half of the costs of a hearing held before a

7-40  hearing officer selected from a list provided by the American

7-41  Arbitration Association.

 

 

 

8-1  4.  A hearing officer shall conduct hearings in cases of

8-2  demotion, dismissal or a refusal to reemploy based on the grounds

8-3  contained in subsection 1 of NRS 391.312.

8-4  5.  This section does not preclude the employee and the

8-5  superintendent from mutually selecting an attorney who is a resident

8-6  of this state to serve as a hearing officer to conduct a particular

8-7  hearing.

8-8  Sec. 11.  NRS 391.318 is hereby amended to read as follows:

8-9  391.318  1.  If a request for a hearing is not made within the

8-10  time allowed, the superintendent shall file his recommendation with

8-11  the board. The board may, by resolution, act on the recommendation

8-12  as it sees fit.

8-13      2.  If a request for a hearing is made[,] and the matter is to be

8-14  heard by a hearing officer selected from the list of hearing officers

8-15  created pursuant to NRS 391.3161, the superintendent shall

8-16  immediately forward a copy of the request for a hearing to the

8-17  Superintendent of Public Instruction for designation of a hearing

8-18  officer pursuant to NRS 391.31915. The superintendent shall not

8-19  file his recommendation with the board until a report of the hearing

8-20  officer is filed with him.

8-21      3.  If a request for a hearing is made and the matter is to be

8-22  heard by a hearing officer selected in accordance with a collective

8-23  bargaining agreement or otherwise agreed upon between the

8-24  superintendent and the employee, the hearing officer must be

8-25  selected as agreed within 15 days after the request for a hearing is

8-26  received by the superintendent. The hearing officer shall comply

8-27  with the applicable time limitations set forth in NRS 391.311 to

8-28  391.3197, inclusive, and section 5 of this act.

8-29      Sec. 12.  NRS 391.31915 is hereby amended to read as

8-30  follows:

8-31      391.31915  1.  Within 10 days after he receives a request for a

8-32  hearing[,] pursuant to subsection 2 of NRS 391.318, the

8-33  Superintendent of Public Instruction shall designate seven attorneys

8-34  from the list of hearing officers. The Superintendent of Public

8-35  Instruction shall immediately provide written notice of the

8-36  designation to the licensed employee and the superintendent.

8-37      2.  [After] Within 10 days after the designation of the

8-38  attorneys, the licensed employee and superintendent shall challenge

8-39  peremptorily one of the seven at a time, alternately, until only one

8-40  remains, who shall serve as hearing officer for the hearing. The

8-41  superintendent and licensed employee shall draw lots to determine

8-42  first choice to exercise a challenge.

 

 

9-1  [3.  The State Board shall prescribe procedures for exercising

9-2  challenges to the hearing officer and set time limits in which the

9-3  challenges may be exercised by the licensed employee and

9-4  superintendent.]

9-5  Sec. 13.  NRS 391.3192 is hereby amended to read as follows:

9-6  391.3192  1.  [As soon as possible after the time of his

9-7  designation,] Except as otherwise provided in subsection 2, within

9-8  120 days after the date on which the recommendation is made to

9-9  demote, dismiss or not reemploy a licensed employee, the hearing

9-10  officer shall hold a hearing to determine whether the grounds for the

9-11  recommendation are substantiated. The commencement of a

9-12  hearing within the 120-day period shall be deemed to comply with

9-13  this subsection, regardless of whether the hearing is concluded

9-14  within that period.

9-15      2.  Compliance with the 120-day limitation prescribed by

9-16  subsection 1 is not required if:

9-17      (a) The superintendent, or his designee, and the licensed

9-18  employee agree in writing to waive the limitation; or

9-19      (b) The hearing officer excuses compliance with the limitation,

9-20  pursuant to a motion supported by an affidavit and for good cause

9-21  shown. The workload or schedules of an attorney or the vacation

9-22  schedule of a witness does not constitute good cause except in

9-23  extreme and unforeseeable circumstances.

9-24      3.  The Superintendent of Public Instruction shall furnish the

9-25  hearing officer with any assistance which is reasonably required to

9-26  conduct the hearing, and the hearing officer may require witnesses

9-27  to give testimony under oath and produce evidence relevant to the

9-28  investigation.

9-29      [3.] 4.  The licensed employee and superintendent are entitled

9-30  to be heard, to be represented by an attorney and to call witnesses in

9-31  their behalf.

9-32      [4.] 5.  The hearing officer is entitled to be reimbursed for his

9-33  reasonable actual expenses and to receive compensation for actual

9-34  time served at a rate of $60 per hour.

9-35      [5.] 6.  If requested by the hearing officer, an official transcript

9-36  must be made.

9-37      [6.] 7.  The board and the licensed employee are equally

9-38  responsible for the expense of and compensation for the hearing

9-39  officer and the expense of the official transcript.

9-40      [7.] 8.  The State Board shall develop a set of uniform

9-41  standards and procedures to be used in such a hearing. The technical

9-42  rules of evidence do not apply to this hearing.

9-43      9.  If a licensed employee, through no fault of his own, is not

9-44  afforded a hearing within the time prescribed by subsection 1 and

9-45  the 120-day limitation period has not been waived or excused

10-1  pursuant to subsection 2, the employee is entitled forthwith to be

10-2  reinstated by the school district and made whole for any loss of

10-3  pay and benefits, plus interest, without any deduction or setoff and

10-4  without any requirement that the employee had to seek alternative

10-5  employment or otherwise attempt to mitigate his damages.

10-6  However, if the employee seeks alternative employment, he is

10-7  entitled to recover the expenses, if any, reasonably incurred by

10-8  him in attempting to secure the alternative employment. In

10-9  addition, the school district shall immediately remove from the

10-10  personnel records of the employee any reference to the

10-11  recommendation.

10-12     Sec. 14.  NRS 391.3193 is hereby amended to read as follows:

10-13     391.3193  1.  Except as otherwise provided in [subsection 3,

10-14  within 30 days after the time of his designation,] this section, the

10-15  hearing officer shall [complete the hearing and shall] prepare and

10-16  file a written report with the superintendent and the licensed

10-17  employee involved not later than [15] 30 days after the conclusion

10-18  of the hearing. If the hearing officer directs that a transcript of the

10-19  hearing be prepared, the hearing officer shall prepare and file his

10-20  report not later than 30 days after he receives the transcript.

10-21     2.  The report must contain an outline of the scope of the

10-22  hearing, findings of fact and conclusions of law, and recommend a

10-23  course of action to be taken by the board. The report of the hearing

10-24  officer is final and binding on the employee and the board if the

10-25  employee and the superintendent have so agreed before the selection

10-26  of the hearing officer was begun.

10-27     3.  If it appears that the report cannot be prepared within [15] 30

10-28  days, the licensed employee and the superintendent shall be so

10-29  notified before the end of that period, and the hearing officer may

10-30  take the time necessary not exceeding [30 days following] 45 days

10-31  after the conclusion of the hearing or receipt of the transcript of the

10-32  hearing, as applicable, to file the written report and

10-33  recommendation.

10-34     4.  The licensed employee and the superintendent or his

10-35  designee may mutually agree to waive any of the time limits

10-36  [applicable to the hearing procedure.] set forth in this section.

10-37     Sec. 15.  NRS 391.3191 is hereby repealed.

10-38     Sec. 16.  This act becomes effective on July 1, 2003.

 

11-1  TEXT OF REPEALED SECTION

 

11-2      391.3191  Submission of request for appointment of hearing

11-3   officer; challenge of members of list of hearing officers before

11-4   designation.

11-5      1.  Each request for appointment of a person from the list of

11-6   hearing officers to serve as a hearing officer must be submitted to

11-7   the Superintendent of Public Instruction.

11-8      2.  The licensed employee and the superintendent may each

11-9   challenge not more than five members of the list of hearing officers,

11-10   and the Superintendent of Public Instruction shall not appoint any

11-11   challenged person.

 

11-12  H