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72-2253. Due process hearing procedures for certain postsecondary teachers; notice of nonrenewal or termination, contents; request for hearing; hearing officers, list, selection, qualifications, eligibility. (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. 72-2251, 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 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) Within 10 calendar days after the filing of any written request of a teacher to be heard as provided in subsection (a), the board shall notify the commissioner of education 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 five randomly selected, qualified hearing officers.

(c) Within five days after receiving the list from the commissioner, 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 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 provisions of this act shall submit an application to the commissioner of education. 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 effective 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.

History: L. 1974, ch. 301, § 3; L. 1975, ch. 373, § 3; L. 1976, ch. 315, § 3; L. 1986, ch. 271, § 1; L. 1991, ch. 224, § 1; L. 1992, ch. 185, § 2; L. 2003, ch. 52, § 1; L. 2014, ch. 93, § 51; July 1.

Source or Prior Law:

72-5438.

Law Review and Bar Journal References:

"What Should Lawyers Know from the 2003 Kansas Legislative Session?" Whitney B. Damron, 72 J.K.B.A. No. 7, 16 (2003).

Attorney General's Opinions:

Waiver of certain due process rights. 86-12.

Teachers' contracts; due process; contract termination; opinion of hearing committee; findings of fact and recommendation; effect. 91-131.

CASE ANNOTATIONS

1. Mentioned in holding continuing contract law and teacher due process act as not inconsistent with each other. NEA-Wichita v. Board of Education of U.S.D. No. 259, 225 Kan. 395, 398, 592 P.2d 80.

2. Notwithstanding statement of reason requirement hereunder, supplemental reasons may be considered when closely connected to original reason and opportunity is afforded to present evidence in defense. Gillett v. U.S.D. No. 276, 227 Kan. 71, 76, 80, 605 P.2d 105.

3. Fact-finding hearing not required prior to board's decision to deliver written notice on intention to nonrenew teacher's contract. U.S.D. No. 461 v. Dice, 228 Kan. 40, 42, 46, 47, 612 P.2d 1203.

4. Teacher must be afforded a full due process hearing before an impartial tribunal prior to midyear termination of his salary. Crane v. Mitchell County U.S.D. No. 273, 7 Kan. App. 2d 430, 433, 643 P.2d 1125 (1982). Reversed, 232 Kan. 51, 652 P.2d 205 (1982).

5. Teacher not employed two consecutive years due to good-faith gap in employment during regular school term. Schmidt v. U.S.D. No. 497, 231 Kan. 267, 269, 644 P.2d 396 (1982).

6. Dismissed teacher was provided proper notice and opportunity to be heard; right to due process hearing can be waived. Crane v. Mitchell County U.S.D. No. 273, 232 Kan. 51, 54, 652 P.2d 205 (1982).

7. Board's decision to nonrenew a tenured teacher's contract not supported by substantial evidence; remanded. Haddock v. U.S.D. No. 462, 233 Kan. 66, 69, 661 P.2d 368 (1983).

8. Purpose of statute is to develop grounds which induced board to give notice to teacher of board's desire to end teacher's services. Coats v. U.S.D. No. 353, 233 Kan. 394, 396, 402, 403, 662 P.2d 1279 (1983).

9. Tenured teacher entitled to due process upon involuntary renewal. Swager v. Board of Education, U.S.D. No. 412, 9 Kan. App. 2d 648, 651, 688 P.2d 270 (1984).

10. Subsequent due process hearing where all rights exercised renders issue on propriety of hearing notice moot. Hein v. Board of Education, U.S.D. No. 238, 10 Kan. App. 2d 303, 304, 698 P.2d 388 (1985).

11. Cited; failure to seek judicial review of employment termination precludes complaint under discrimination act (K.S.A. 44-1001 et seq.). Neunzig v. Seaman U.S.D. No. 345, 239 Kan. 654, 655, 662, 722 P.2d 569 (1986).

12. Cited; supplemental coaching duties during school day as counting toward tenure, necessity for due process requirements examined. Hachiya v. U.S.D. No. 307, 242 Kan. 572, 581, 750 P.2d 383 (1988).

13. Cited; failure to follow K.S.A. 72-5443 as not violative of due process under circumstances examined. Leaming v. U.S.D. No. 214, 242 Kan. 743, 745, 750 P.2d 1041 (1988).

14. Due process procedure act found not to require reduction of teaching staffs based on seniority. O'Hair v. U.S.D. No. 300, 15 Kan. App. 2d 52, 54, 805 P.2d 40 (1991).

15. School board's role in reviewing decision of hearing committee on nonrenewal of tenured teacher examined. Loewen v. U.S.D. No. 411, 15 Kan. App. 2d 612, 614, 813 P.2d 385 (1991).

16. Mandamus appropriate remedy for tenured teacher to pursue for salary pending resolution of due process proceedings. McMillen v. U.S.D. No. 380, 253 Kan. 259, 268, 855 P.2d 896 (1993).

17. Whether appellate procedural protections in teachers' act (K.S.A. 72-5436 et seq.) should apply to administrators' act (K.S.A. 72-5451 et seq.) examined. Allen v. U.S.D. No. 436, 19 Kan. App. 2d 873, 877, 878 P.2d 223 (1994).

18. Change in term or condition of professional service does not constitute nonrenewal of existing contract. Baldwin v. U.S.D. No. 418, 23 Kan. App. 2d 280, 282, 930 P.2d 18 (1996).

19. Appropriate standard of review for hearing officer's decision on termination considered. U.S.D. No. 500 v. Robinson, 262 Kan. 357, 362, 940 P.2d 1 (1997).

20. Teacher properly denied hearing concerning nonrenewal notice where K.S.A. 72-5445 tenure requirements were not met. Munguia v. Unified School Dist. No. 328, 125 F.3d 1353, 1355 (1997).

21. Void employment contract does not eliminate a tenured teacher's property interest in continued employment. Rettie v. U.S.D. No. 475, 38 Kan. App. 2d 517, 167 P.3d 810 (2007).

22. Constitutional due process did not require legislature to conduct a hearing before repealing provisions that granted a right to procedural due process. Scribner v. U.S.D. no. 492, 308 Kan. 254, 269, 419 P.3d 1149 (2018).


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