Recent changes in the Virginia Code regarding procedures for the dismissal of teachers create significant substantive and procedural concerns for both the school district and counsel representing teachers in these matters. As General Counsel for the Fairfax County Federation of Teachers (FCFT) and an attorney who has represented teachers and administrators for over 20 years in personnel actions, I am offering these comments to highlight issues created by the new legislation and perhaps unanticipated by the drafters. Appropriate Regulations should be drafted to address these issues.

1. The removal of "probation" as a resolution alternative in the context of the dismissal action. 

The removal of a probationary alternative in a dismissal action under Va. Code 22.1-307 raises the question as to whether or not a school board now has any jurisdiction to employ this option in the settlement of a dismissal case.In many cases where the school has given notice of dismissal to a teacher, both the teacher and the school district have resolved these matters to their mutual satisfaction through settlement agreements, resignation agreements and other forms of dispute resolution.When it is fair and equitable to resolve the case short of dismissal, the elements of a resolution agreement often include a specific sanction (for example, suspension of time and/or pay) and a rehabilitative process often described as a "probationary” period.Flexibility to fashion such remedies are impaired by deletion of probation in 22.1-307 and 22.1-313(A).

2. Determination of "incompetency".  

The term "incompetency" may now be construed as "one or more unsatisfactory performance evaluation(s)” under Va. Code 22.1-307 (B).In cases where the school district moves for dismissal alleging incompetence for a single unsatisfactory performance evaluation, particular care should be taken to ensure that the evaluation was objective, fair, and not subject to unprofessional or extraneous administrative influence.In a dismissal action for incompetency for a single unsatisfactory performance evaluation, the division superintendent should be required to show a pattern of poor performance, failure to respond to rehabilitative effort or other documented factors in addition to the single performance evaluation.

3. Notice of a dismissal recommendation. 

Va. Code 22.1-309 provides for written notice of the dismissal recommendation to a teacher and informing him that within five(5) business days after receiving the notice, the teacher may request a hearing before the school board.The reduction from fifteen( 15) business days to five (5), will create an extraordinary burden on teachers to quickly (I predict in all, if not most, cases) give notice for a hearing because there is insufficient time to seek comprehensive advice and guidance regarding other options.By the time a teacher in such a position has the opportunity to seek guidance from a union representative, an attorney, or even family members, they run the risk of missing a statutory deadline to preserve their fundamental due process right to a hearing. The net result is that most teachers will immediately give notice for a hearing, thus starting a statutory timeline for exchange of information (discovery), setting up a hearing, possible identification of the hearing officer, all of which is time-consuming for teachers and administrative personnel.This will make reasonable settlement-negotiations much more difficult.

4. Unreasonable and Burdensome Discovery Deadlines.

Va. Code 22.1-309 mandates that upon the teacher’s request for a hearing pursuant to Section 22.1-311, the division superintendent shall provide within 10 days the opportunity to inspect and copy the teacher's personnel file and "all other documents relied upon reaching the decision to recommend dismissal". In dismissal cases discoverable documents often extend beyond a teacher's personnel file.They may include, but not be limited to, the principal’s notes from meetings with the teacher, so-called "school based" files, and unsolicited writings from parents to school officials regarding the teacher (regardless of any informal promise of confidentiality between the parent and the receiving administrator).The mandatory 10-day limitation for delivery of all of this information for inspection and copying is predictably burdensome on school administration.

To magnify the potential discovery problems, the Code now provides that the teacher shall provide the division superintendent with the opportunity to inspect and copy any documents to be offered in rebuttal to the recommended dismissal.  In most cases, the teacher is not able to identify all documents until there has been a full disclosure of documents from the division superintendent. However, if the division superintendent makes an immediate (or simultaneous) document request as does the teacher, they are both working within the same 10-day period. It is suggested that these periods be staggered to some degree, even though there is a continuing obligation to produce information. All exchanges of documents should be completed and certified as complete at least five business days prior to a hearing.

5. Scheduling of the hearing relative to discovery deadlines.

Va. Code 22.1-311 requires the school board (or a hearing officer appointed by the school board) to set a hearing within 15 days of the request made by the teacher. Any regulations should clarify whether this is a deadline to schedule a hearing or to actually commence the hearing. Further, the teacher is to be given at least a five-day written notice of the time and place of the hearing. This short timeframe will predictably conflict with the 10-day time-limitations for discovery mandated by Section 22.1-309.The net result will be substantial time devoted by both parties to meet these deadlines. This will jeopardize opportunities to resolve a dismissal case through a negotiated agreement. The short time frames will increase the number of contested hearings and the costs associated for both sides.

Regulations should provide for flexibility in the scheduling and commencement of hearings.It is also suggested that the regulations require the development of a prehearing memorandum which defines procedures for the conduct of the hearings, deadlines for discovery exchanges and rulings for any preliminary matters such as availability of witnesses, ability of witnesses to testify by telephone etc.