Text: HF02457 Text: HF02459 Text: HF02400 - HF02499 Text: HF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN
1 1 Section 1. NEW SECTION. 279.60 NONTEACHER EMPLOYEE –
1 2 DISCIPLINE – DISCHARGE.
1 3 1. A nonprobationary public school employee who is not a
1 4 teacher and is covered under a collective bargaining agreement
1 5 which does not contain a discipline and discharge provision
1 6 shall not be disciplined or discharged except for just cause.
1 7 To establish just cause, an employer shall show by a
1 8 preponderance of evidence that any of the following apply:
1 9 a. That progressive discipline was followed unless clear
1 10 and convincing evidence exists that the infraction is of such
1 11 a heinous nature that a reasonable person would assume the
1 12 infraction would result in immediate discharge.
1 13 b. That the infraction is work-related in that it injured
1 14 the reputation, efficiency, or safety of the employer.
1 15 c. That the employee was notified in writing of the
1 16 alleged infraction with a statement of facts concerning the
1 17 infraction, that a fair and impartial investigation was
1 18 conducted, and that the employee was given time to prepare and
1 19 rebut the employer's allegations.
1 20 d. That the discipline or discharge imposed is related to
1 21 the seriousness of the infraction and takes into account the
1 22 past record of the employee.
1 23 e. That no disparate or discriminatory treatment has been
1 24 provided in implementing the discipline or discharge.
1 25 2. The superintendent or the superintendent's designee
1 26 shall submit a written notice of discipline or discharge by
1 27 certified mail to an employee who meets the criteria
1 28 established in subsection 1. The notice shall state the
1 29 reasons for the discipline or discharge. Within two days of
1 30 the employee's receipt of a notice of discipline or discharge,
1 31 the employee shall be permitted to obtain a copy of the
1 32 employee's personnel file maintained by the employee's
1 33 employer, including but not limited to performance
1 34 evaluations, disciplinary records, and other information
1 35 concerning employer-employee relations.
2 1 3. Within seven days of the employee's receipt of a notice
2 2 of discipline or discharge as provided in this section, the
2 3 employee may file a complaint with the employer's designated
2 4 representative and request, in writing to the secretary of the
2 5 school board, a private hearing with the school board. The
2 6 private hearing shall not be subject to chapter 21 or 22 and
2 7 shall be held within thirty days following the employee's
2 8 receipt of the employee's personnel file unless the parties
2 9 otherwise agree. The secretary of the board shall notify the
2 10 employee in writing of the date, time, and location of the
2 11 private hearing, and at least five days before the hearing
2 12 shall also furnish to the employee any documentation which may
2 13 be presented to the board at the private hearing and a list of
2 14 persons who may address the board at the private hearing in
2 15 support of the superintendent's decision to discipline or
2 16 discharge the employee. At least three days before the
2 17 hearing, the employee shall provide any documentation the
2 18 employee expects to present at the private hearing, along with
2 19 the names of any persons who may address the board on behalf
2 20 of the employee. This exchange of information shall be at the
2 21 time specified unless otherwise agreed. The participants at
2 22 the private hearing shall be at least a majority of the
2 23 members of the board, their legal representatives, if any, the
2 24 superintendent, the superintendent's designated
2 25 representatives, if any, the employee's immediate supervisor,
2 26 the employee, the employee's representatives, if any, and the
2 27 witnesses for the parties. The presiding officer of the board
2 28 may administer oaths in the same manner and with like effect
2 29 and under the same penalties as in the case of magistrates
2 30 exercising criminal or civil jurisdiction. The board shall
2 31 cause subpoenas to be issued for such witnesses and the
2 32 production of such books and papers as either the board or the
2 33 employee may designate. The subpoenas shall be signed by the
2 34 presiding officer of the board. The superintendent or the
2 35 superintendent's designee shall present evidence and argument
3 1 on all issues involved and the employee may cross-examine,
3 2 respond, and present evidence and argument in the employee's
3 3 behalf relevant to all issues involved. All evidence is
3 4 admissible providing it is relevant, material, and not
3 5 excluded under the hearsay rule. The school board shall
3 6 record the hearing by mechanical means and a transcript of the
3 7 hearing shall be made at the request of either party with the
3 8 expense of transcription charged to the requesting party. If
3 9 the employer does not timely meet a notification or hearing
3 10 deadline as required under subsection 2 or this subsection,
3 11 the employee may appeal the action of the superintendent
3 12 directly to an adjudicator in the manner described in
3 13 subsection 5.
3 14 4. Within five working days after the private hearing, the
3 15 board shall issue a written disposition and shall set forth
3 16 its findings of fact and conclusions of law, separately
3 17 stated. Findings of fact, if set forth in statutory language,
3 18 shall be accompanied by a concise and explicit statement of
3 19 the underlying facts supporting the findings. Each conclusion
3 20 of law shall be supported by cited authority or by reasoned
3 21 opinion.
3 22 5. If the employee is not satisfied with the board's
3 23 disposition, the employee may, within ten days, appeal the
3 24 determination of the board to an adjudicator by filing a
3 25 notice of appeal with the secretary of the board. The notice
3 26 of appeal shall contain a concise statement of the action
3 27 which is the subject of the appeal, the particular board
3 28 action appealed from, the grounds on which relief is sought
3 29 and the relief sought. If the employee does not timely
3 30 request an appeal to an adjudicator, the decision, opinion, or
3 31 conclusion of the board shall become final and binding. If
3 32 the certified employee organization that represents the
3 33 employee disagrees with the employee's decision to appeal, the
3 34 organization may withdraw its representation without
3 35 prejudice.
4 1 6. Within ten working days following receipt by the
4 2 secretary of the notice of appeal, the board or the board's
4 3 legal representative, if any, or the employee or the
4 4 employee's representative, if any, may notify the chairperson
4 5 of the public employment relations board by transmitting the
4 6 notice of appeal, and the chairperson of the public employment
4 7 relations board shall within five days provide a list of five
4 8 adjudicators to the parties. Within three days from receipt
4 9 of the list of adjudicators, the parties shall select an
4 10 adjudicator by alternately removing a name from the list until
4 11 only one name remains. The person whose name remains shall be
4 12 the adjudicator. The parties shall determine by lot which
4 13 party shall remove the first name from the list submitted by
4 14 the chairperson of the public employment relations board. The
4 15 secretary of the board shall inform the chairperson of the
4 16 public employee relations board of the name of the adjudicator
4 17 selected.
4 18 7. Within thirty days after filing the notice of appeal,
4 19 or within further time allowed by the adjudicator, the board
4 20 shall transmit to the adjudicator the original or a certified
4 21 copy of the entire record of the private hearing which may be
4 22 the subject of the petition. By stipulation of the parties to
4 23 review the proceedings, the record of the case may be
4 24 shortened. The adjudicator may require or permit subsequent
4 25 corrections or additions to the shortened record.
4 26 8. The record certified and filed by the board shall be
4 27 the record upon which the appeal shall be heard; however, the
4 28 adjudicator may require the superintendent or the
4 29 superintendent's designee to present evidence and argument on
4 30 all issues involved and the employee may cross-examine,
4 31 respond, and present evidence and argument in the employee's
4 32 behalf relevant to all issues involved. The adjudicator may
4 33 agree to hear new evidence in addition to that found in the
4 34 record of the case if it is shown to the adjudicator that the
4 35 additional evidence is material and that good reasons existed
5 1 for failure to present it in the private hearing before the
5 2 board.
5 3 9. The adjudicator shall reverse, modify, or grant any
5 4 appropriate relief from the board action if substantial rights
5 5 of the employee have been prejudiced because the board action
5 6 is any of the following:
5 7 a. In violation of a board rule or policy or contract.
5 8 b. Unsupported by a preponderance of the competent
5 9 evidence in the record made before the board when that record
5 10 is viewed as a whole.
5 11 c. Unreasonable, arbitrary, or capricious or characterized
5 12 by an abuse of discretion or a clearly unwarranted exercise of
5 13 discretion.
5 14 10. The adjudicator shall, within fifteen days after the
5 15 hearing, make a decision, which shall be based upon the
5 16 evidence required pursuant to subsection 1, and shall give a
5 17 copy of the decision to the employee and the secretary of the
5 18 board. The decision of the adjudicator is final and binding
5 19 and subject to enforcement in accordance with section 20.17,
5 20 subsection 5, and section 20.23.
5 21 11. All costs of the adjudicator shall be shared equally
5 22 by the employee and the board.
5 23 Sec. 2. IMPLEMENTATION OF ACT. Section 25B.2, subsection
5 24 3, shall not apply to this Act.
5 25 EXPLANATION
5 26 This bill establishes discipline and discharge procedures
5 27 for school boards and their nonprobationary, nonteacher
5 28 employees who are covered under collective bargaining
5 29 agreements which do not contain a discipline or discharge
5 30 provision. The bill provides that such a public school
5 31 employee shall not be disciplined or discharged except for
5 32 just cause.
5 33 The bill describes "just cause" as a preponderance of
5 34 evidence that progressive discipline was followed, unless
5 35 there is clear and convincing evidence the infraction is of
6 1 such a heinous nature that a reasonable person would know the
6 2 infraction would result in immediate discharge; that the work-
6 3 related infraction injured the reputation, efficiency, or
6 4 safety of the employer; that the employee was notified in
6 5 writing of the alleged infraction, that a fair and impartial
6 6 investigation was conducted, and that the employee was given
6 7 time to prepare and rebut the employer's allegations; that the
6 8 action is related to the seriousness of the infraction and
6 9 takes the employee's past record into account; and that there
6 10 has been no disparate or discriminatory treatment in
6 11 implementing discipline or discharge.
6 12 The school district must send written notice of the action
6 13 to the employee, stating the reasons for the discipline or
6 14 discharge. The employee shall be permitted to obtain a copy
6 15 of the employee's personnel file and may file a complaint with
6 16 the employer's designated representative and request a private
6 17 hearing with the school board.
6 18 The superintendent or the superintendent's designee shall
6 19 present evidence and argument on all issues involved and the
6 20 employee may cross-examine, respond, and present evidence and
6 21 argument in the employee's behalf relevant to all issues
6 22 involved. All evidence is admissible providing it is relevant
6 23 and material and not excluded under the hearsay rule.
6 24 If the employer does not timely meet a notification
6 25 requirement or hearing deadline, the employee may appeal the
6 26 determination of the superintendent directly to an
6 27 adjudicator.
6 28 If the employee is not satisfied with the board's
6 29 disposition after the private hearing, the employee may appeal
6 30 the board's determination to an adjudicator. If the certified
6 31 employee organization that represents the employee disagrees
6 32 with the employee's decision to appeal, the organization may
6 33 withdraw its representation without prejudice.
6 34 The record certified and filed by the board shall be the
6 35 record upon which the appeal shall be heard; however, the
7 1 adjudicator may require the superintendent or the
7 2 superintendent's designee to present evidence and argument on
7 3 all issues involved and the employee may cross-examine,
7 4 respond, and present evidence and argument in the employee's
7 5 behalf relevant to all issues involved. The adjudicator may
7 6 agree to hear new evidence in addition to that found in the
7 7 record of the case if it is shown to the adjudicator that the
7 8 additional evidence is material and that there were good
7 9 reasons for failure to present it in the private hearing
7 10 before the board.
7 11 The decision of the adjudicator is final and binding and
7 12 subject to enforcement in accordance with Code section 20.17,
7 13 subsection 5, and Code section 20.23, which provide for legal
7 14 action under the collective bargaining laws.
7 15 The bill may include a state mandate as defined in Code
7 16 section 25B.3. The bill makes inapplicable Code section
7 17 25B.2, subsection 3, which would relieve a political
7 18 subdivision from complying with a state mandate if funding for
7 19 the cost of the state mandate is not provided or specified.
7 20 Therefore, political subdivisions are required to comply with
7 21 any state mandate included in the bill.
7 22 LSB 5908YH 79
7 23 kh/sh/8
Text: HF02457 Text: HF02459 Text: HF02400 - HF02499 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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