LRSD Drama is getting old | The Hoglawyer

Tuesday, May 8, 2007

LRSD Drama is getting old

Posted By on Tue, May 8, 2007 at 9:15 PM

Re-reading Brooks' contract, I don't see how the school board, specifically the majority opposed to Brooks and the school board's lawyers, got this case so wrong.

As Judge Eisele so eloquently explained - The contract clause describing the suspension procedures is not ambiguous: "the superintendent will be afforded the due process afforded above." Above were the procedures to terminate. These clearly included that a hearing officer would be used, witnesses would be called and subject to cross-examination, and the hearing officer's conclusions would be voted on by the board.

What did the board do? They tried to suspend him without a hearing, without a hearing officer, and without 5 days notice. I saw where in Welch's letter to Askew he questioned the need for a hearing officer in pre-termination proceedings -- but a contract is a contract.

Welch is one of the state's best lawyers who I have great respect for, but he made the wrong call in this case. In his letter Welch wrote "I've determined that my clients should go ahead with the hearing on suspension without a hearing officer" Askew wrote back that to do so was the opposite of what the school board's own attorney advised and a "clear and blatant" violation of the contract. Askew threw in that he hoped upon reflection Welch's position would change.

Of course, on the issue of the need for 5 days notice, the need for a hearing officer, and the need for full due process protections, Brooks has won. It may be a phyrric victory of course - but at least he will get a meaningful hearing before a neutral, mutually agreed upon hearing officer - Why was the school board so opposed to this when it was in the contract, when its what their own primary attorney suggested - and it was simply the right thing to do? All I can think of is ego and hubris.

There will be a suspension hearing followed by a termination hearing now unless a majority of the board offers a buyout. Eisele warned the school board that they should pay careful attention to the hearing officer's findings. I predict that even if a hearing officer finds only a minor or technical violation - the school board will treat that as gold and a "clear justificaiton" for firing Brooks.

Im no school or employment law expert - but I think that that no matter what the school board votes, Brooks could appeal their decision to circuit court. I might be mistaken but I think the circuit judge would give little or no consideration to the school board's findings and consider only those findings by the hearing officer. ( at least this is how it works in admin cases) The circuit judge could also fully consider whether Brooks was given full due process rights as per his contract.

This will all take a long time, be extremely costly, and as the school board has quickly learned - things might not go their way. I agree with Max Brantley of the Arkansas Times, - buy him out now - don't wait. If someone is considering moving to the LR area and they want to check out the schools -- do we want their searches to be filled with articles about racial conflict? When teachers are considering which school district to work - would they want to work somewhere where a court has found an employee was denied due process? Of course not. This is a PR nightmare for our city. The story has already been covered by the NYT and CNN - and this seedy drama can only get worse if there is a full hearing. Forget saving a few $100,000 by "winning" a termination hearing -- the only winners will be private school enrollment and other cities that steal jobs that we scare away. It needs to end now - buy him out.

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