MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Education

By: Representative Blackmon

AN ACT TO AMEND SECTION 37-9-101, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT ALL SCHOOL BOARD DECISIONS OF NONREEMPLOYMENT OF LICENSED SCHOOL EMPLOYEES SHALL BE BASED ON GOOD CAUSE AND TO PROVIDE PROCEDURAL AND SUBSTANTIVE DUE PROCESS OF LAW IN SUCH NONREEMPLOYMENT; TO AMEND SECTION 37-9-111, MISSISSIPPI CODE OF 1972, TO REQUIRE SCHOOL BOARDS TO PROVIDE A COPY OF THE TRANSCRIPT OF A NONREEMPLOYMENT PROCEEDING AT NO COST TO EMPLOYEES AND TO PROVIDE THAT HEARSAY EVIDENCE SHALL NOT BE ADMISSIBLE AT SUCH HEARINGS, EXCEPT AS ALLOWED IN CIVIL PROCEEDINGS; TO AMEND SECTION 37-9-113, MISSISSIPPI CODE OF 1972, TO PRESCRIBE THE SCOPE OF REVIEW OF THE CHANCERY COURT IN ANY APPEAL OF NONREEMPLOYMENT DECISIONS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 37-9-101, Mississippi Code of 1972, is amended as follows:

37-9-101. Sections 37-9-101 through 37-9-113 shall be known as and cited as the "School Employment Procedures Law of 1977."

It is the intent of the Legislature to provide procedural and substantive due process of law in the nonreemployment of public school employees. All decisions of nonreemployment of public school employees shall be based upon good cause.

SECTION 2. Section 37-9-111, Mississippi Code of 1972, is amended as follows:

37-9-111. (1) The school board, upon request for a hearing from an employee under the terms of Sections 37-9-101 through 37-9-113, shall set the time, place and date of such hearing and notify the employee in writing of same. The date shall be set not sooner than five (5) days nor later than thirty (30) days from the date of the request, unless otherwise agreed. The hearing may be held before the board or before a hearing officer appointed for such purpose by the board, either from among its own membership, from the staff of the school district or some other qualified and impartial person, but in no event shall the hearing officer be the staff member responsible for the initial decision of nonreemployment.

(2) The employee shall be afforded an opportunity to present matters at the hearing relevant to the reasons given for the nonreemployment determination and to the reasons the employee alleges to be the reasons for nonreemployment and to be represented by counsel at such a hearing. Such hearing shall be conducted in such a manner as to afford the employee a fair and reasonable opportunity to present witnesses and other evidence pertinent to the issues in his behalf and to cross-examine witnesses against the employee. The board or the hearing officer may require any portion of the evidence to be submitted in the form of depositions or affidavits, and in case affidavits are received, an opportunity to present counter-affidavits shall be provided.

(3) The board shall cause to be made stenographic notes of the proceedings. In the event of a judicial appeal of the board's decision, such notes shall be transcribed and the board, upon request, shall provide the employee a copy of the transcript at no cost to the employee.

(4) The board shall review the matters presented before it, or, if the hearing is conducted by a hearing officer, the record of the proceedings and, based solely thereon, conclude whether the nonreemployment determination is a proper employment decision, and shall notify the employee in writing of its final decision and reasons therefor. Such notification shall be within thirty (30) days of the conclusion of the hearing if the hearing is conducted by a hearing officer and within ten (10) days of the conclusion of the hearing if the hearing is initially conducted by the board. If the matter is heard before a hearing officer, the board shall also grant the employee the opportunity to appear before the board to present a statement in his own behalf, either in person or by his attorney, prior to a final decision by the board.

(5) In conducting a hearing, the board or hearing officer shall not be bound by common law or by statutory rules of evidence or by technical or formal rules of procedure except as provided in Sections 37-9-101 through 37-9-113, but may conduct such hearing in such manner as best to ascertain the rights of the parties; * * * however, hearsay evidence shall not be admissible except as allowed under the Mississippi Rules of Civil Procedure.

(6) In the event the decision of the school board is in favor of the employee, the board shall have the authority to order the execution of a contract with the employee for an additional period of one (1) year.

(7) For purposes of conducting hearings under Sections 37-9-101 through 37-9-113, the board or hearing officer shall have the authority to issue subpoenas for witnesses and to compel their attendance and the giving of evidence. Any expense connected therewith shall be borne by the party requesting the subpoenas, which shall include an appearance fee for each witness so subpoenaed not inconsistent with state laws governing payments to witnesses. In the event it is necessary to enforce or to quash a subpoena issued to compel the attendance of a witness, application shall be made with the chancery court of the county where the school board is located.

SECTION 3. Section 37-9-113, Mississippi Code of 1972, is amended as follows:

37-9-113. (1) Any employee aggrieved by a final decision of the school board is entitled to judicial review thereof, as hereinafter provided.

(2) An appeal may be taken by such employee to the chancery court of the judicial district in which the school district is located, by filing a petition with the clerk of that court and executing and filing bond payable to the school board with sufficient sureties, in the penalty of not less than Two Hundred Dollars ($200.00), conditioned upon the payment of all of the costs of appeal, within twenty (20) days of the receipt of the final decision of the board.

(3) The scope of review of the chancery court in such cases shall be limited to a review of the record made before the school board or hearing officer to determine if the action of the school board is unlawful for the reason that it was:

(a) Against the overwhelming weight of the evidence;

(b) Arbitrary or capricious; or

(c) In violation of some statutory or constitutional right of the employee.

(4) No relief shall be granted based upon a court's finding of harmless error by the board in complying with the procedural or substantive requirements of Sections 37-9-101 through 37-9-113. However, in the event that there is a finding of prejudicial error in the proceedings, the cause shall be remanded for a rehearing consistent with the findings of the court.

(5) Any party aggrieved by action of the chancery court may appeal to the Supreme Court in the manner provided by law.

SECTION 4. This act shall take effect and be in force from and after July 1, 1999.