October 01, 2018 | Blog, Grievances

Delegation Evasion

Tommy FisherIn the recent consolidated cases of Kane v. United Indep. Sch. Dist. and Volpe v. United Indep. Sch. Dist., the Commissioner of Education ordered a school district to adopt a grievance policy requiring a school board to hold grievance hearings, without delegation to a committee.

Under the district’s local grievance policy at issue, the board president was authorized to decide whether the board conducted the hearing, or if the grievance would be heard by a committee of the board.  If the committee heard the grievance, the school board would make a final decision based on the committee’s recommendation.  However, the grievant would not receive a hearing before the entire board if the grievance was delegated to a committee.

The commissioner found that school boards are required to give a grievant a board hearing.  He stated that Texas Education Code §11.1511(b)(13) does not give a school board the option to grant a hearing or to substitute a board committee hearing for a board hearing, but rather requires the board to establish a process for hearings.  In addition, §11.1513(i) specifically requires that a district’s employment policy give the employee the right to present a grievance to the school board itself.  The commissioner also rejected the argument that the open comment portion of a school board meeting would give employees sufficient access to the board, because the open comment option was not mentioned in the policy nor did the open comment option provide due process.

What is the import of this decision?  Initially, if your district has a similar policy that delegates responsibility for hearing grievances to a board committee, that policy should be changed immediately.  If you have grievances in process that will ultimately be heard by a committee pursuant to a similar policy, it is recommended that the grievant involved be advised that the board will be the final decision maker for the grievance rather than a committee.

If you have any questions regarding this decision, please do not hesitate to contact the attorneys at Leasor Crass on this or any other school law issue.

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