116393-2:n:01/20/2010:KMS/mfp LRS2010-322R1

Relating to public K-12 education; to amend Sections 16-24-8, 16-24-9, 16-24-10, and 16-24-20, Code of Alabama 1975, relating to the teacher tenure law; to authorize the immediate cancellation of the employment contract of any teacher on continuing service status convicted of a felony or of a sex offense involving a child; to provide for a precancellation hearing before the local board of education; and to restrict the use of testimony offered in contract cancellation hearings in related criminal proceedings.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

§16-24-8.

"(a) Cancellation of an employment contract with a teacher on continuing service status may be made for incompetency, insubordination, neglect of duty, immorality, failure to perform duties in a satisfactory manner, justifiable decrease in the number of teaching positions, or other good and just cause, but cancellation may not be made for political or personal reasons.

"(b) The employment contract of a teacher, whether or not the teacher is on continuing service status, may be cancelled by majority vote of the local board of education upon conviction of the teacher of a felony or upon entry of a plea of guilty or nolo contendere by the teacher in any court to a felony charge under federal or state law if the felony constitutes a crime of moral turpitude, or upon conviction of the teacher or upon entry of a plea of guilty of the teacher to any of the following charges:

"(1) Rape in the first or second degree, pursuant to Section 13A-6-61 or 13A-6-62.

"(2) Sodomy in the first or second degree, pursuant to Section 13A-6-63 or 13A-6-64.

"(3) Sexual torture, pursuant to Section 13A-6-65.1.

"(4) Sexual abuse in the first or second degree, pursuant to Section 13A-6-66 or 13A-6-67.

"(5) Enticing a child to enter a vehicle, room, house, office, or other place for immoral purposes, pursuant to Section 13A-6-69.

"(6) Promoting prostitution in the first or second degree, pursuant to Section 13A-12-111 or 13A-12-112.

"(7) Violation of the Alabama Child Pornography Act pursuant to Section 13A-12-191, 13A-12-192, 13A-12-196, or 13A-12-197.

"(8) Kidnapping a minor, except by a parent, in the first or second degree, pursuant to Section 13A-6-43 or 13A-6-44.

"(9) Incest, pursuant to Section 13A-13-3, when the offender is an adult and the victim is a minor.

"(10) Transmitting obscene material to a child by computer, pursuant to Section 13A-6-111.

"(11) Facilitating solicitation of unlawful sexual conduct with a child, pursuant to Section 13A-6-121.

"(12) Electronic solicitation of a child or facilitating the online solicitation of a child, pursuant to Section 13A-6-122 or 13A-6-123.

"(13) Traveling to meet a child for an unlawful sex act or facilitating the travel of a child for an unlawful sex act, pursuant to Section 13A-6-124 or 13A-6-125.

"(14) Any solicitation, attempt, or conspiracy to commit any of the offenses listed in subdivisions (1) to (13), inclusive.

"(15) Any crime committed in any state or a federal, military, or foreign jurisdiction which, if committed in this state under the law existing at the time of the offense, would constitute an offense listed in subdivisions (1) to (13), inclusive.

"(16) Any criminal sex offense in which the victim is a child under the age of 12 or any offense involving child pornography.

"(17) Any crime committed in any jurisdiction which, regardless of the specific description or statutory elements, may be characterized or known as rape, sodomy, sexual assault, sexual battery, sexual abuse, sexual torture, solicitation of a child, enticing or luring a child, child pornography, lewd and lascivious conduct, taking indecent liberties with a child, or molestation of a child.

"(18) Any crime not listed in this subsection involving endangerment to the health, safety, or welfare of a child that may be created on or after the effective date of the act adding this subdivision.

§16-24-9.

"(a) An Except as provided in subsection (b) of Section 16-24-8, an employment contract with a teacher on continuing service status may be cancelled only in the following manner: The superintendent shall give written notice to the employing board and the teacher of the superintendent's intention to recommend a cancellation as provided in subsection (a) of Section 16-24-8. Such notice shall state the reasons for the proposed cancellation, and shall contain a short and plain statement of the facts showing that the cancellation is taken for one or more of the reasons listed in subsection (a) of Section 16-24-8, and. The notice shall state the time and place for of the board's meeting hearing on the proposed cancellation, which meeting hearing shall be held no less than 20 days and no more than 30 days after the receipt of such notice by the teacher. The notice shall also inform the teacher that in order to request a conference with the board preserve the right to a board hearing on the proposed cancellation, the teacher shall file a written request with the superintendent within 15 no later than five days after the receipt of such notice before the date of the hearing. Failure of the teacher to timely request a hearing or other waiver of the right to a hearing before the board does not prejudice the right of the teacher to appeal the decision of the board pursuant to Section 16-24-10. At such conference the board hearing, which shall may be public or private at the discretion of the teacher, the teacher, or his or her representative, shall be afforded the opportunity to speak to the board on matters relevant to such cancellation respond orally or in writing to the charges on which the proposed cancellation is based and to offer evidence and reasons as to why the proposed action should not be taken. The teacher shall have the right to counsel, at the expense of the teacher, and either party may and to have a court reporter record his or her statement, both at the expense of the teacher. Thereafter and transcribe the proceedings before the board, at the expense of the State Department of Education. Unless the teacher chooses a public hearing, expressly waives his or her right to testify, or offers the hearing transcript or record, or any part thereof, into evidence in a criminal proceeding, no testimony or statement offered by the teacher during or in connection with the board hearing shall constitute a waiver of the right of the teacher not to testify in a criminal proceeding and no part of the transcript or record of the contract cancellation hearing that memorializes or evidences any statement or testimony by the teacher before the board shall be admissible in any criminal proceeding in which the teacher is a defendant and which arises out of or relates to the facts and circumstances on which the proposed contract cancellation is based. Nothing in this subsection shall preclude the proffer or consideration of the transcript or record of the contract cancellation hearing, or the decision of the board, in any appeal brought pursuant to Section 16-24-10. Following the hearing, the board shall determine, by majority vote, whether such cancellation shall be effectuated to cancel the employment contract of the teacher. The decision of the board shall be accorded a presumption of correctness in the event the teacher appeals the decision of the board pursuant to Section 16-24-10.

"(b) Regardless of whether Whether or not the employee teacher elects to have a conference hearing with the employing board, if the board votes to cancel the teacher's contract, the superintendent shall give notice to the teacher of the board's action by providing notice by personal service, by United States Postal Service registered or certified mail with postage paid thereon to the teacher's last known address, or by private mail carrier for overnight delivery, signature required, with postage paid thereon to the teacher's last known address within 10 days of the board's action. Such notice shall be in writing and shall inform the teacher of the right to contest the board's decision by filing with the superintendent a written notice of contest of the action within 15 days of the receipt of the notice. Such contest shall be taken by filing a written notice of contest with the superintendent within 15 days after receipt of the notice of the decision of the employing board. If the contest is not timely taken, the board's decision shall be final. No cancellation shall be effected until the time for filing notice of contest has expired and, if notice of contest is filed, not until the hearing officer has issued an opinion.

§16-24-10.

"(a) If notice of contest is filed pursuant to Section 16-24-9, the hearing officer shall be selected as provided in subsection (b) of Section 16-24-20. Upon selection, the hearing officer shall immediately cause notice to be given to the parties of the date and time for a hearing, which date shall be no less than 30 days and no more than 60 days following the appointment of the hearing officer. The parties shall agree as to the location of the hearing and, if the parties are unable to agree, the hearing officer shall determine the location within the jurisdiction of the employing board. No less than 30 days before such date, the parties shall submit to the hearing officer, with a copy to the opposing party, documents supportive of, or in contravention to, the action, as well as a list of witnesses to be called at such hearing. The witness list and documentary submissions may be amended at any time prior to five days before such hearing. The hearing may be public or private at the discretion of the teacher. The State Department of Education shall bear the expense of having a court reporter present at such hearing. The hearing officer shall have power to administer oaths, and issue subpoenas to compel the attendance of witnesses and production of papers necessary as evidence and/or information in connection with the dispute or claim. If requested, the hearing officer shall issue subpoenas for witnesses to testify at the hearing, under oath, either in support of the charges or on behalf of the teacher. In case a person refuses to obey such subpoena, the board, or its authorized representative, may invoke the aid of the circuit court in order that the testimony, evidence, or information be produced. Upon proper showing, such court shall issue a subpoena or order requiring such person to appear before the board or its representative and produce evidence and/or or information, or both, and give testimony relating to the matter at issue. Unless waived by the teacher, the terms, conditions, and prohibitions provided in Section 16-24-9, pertaining to the use of the hearing transcript in criminal proceedings, shall apply in the same manner to hearings and related proceedings conducted by the hearing officer pursuant to this section. The teacher shall have the burden of proving that the decision of the board should be set aside. To determine whether the teacher has met his or her burden, the The hearing officer shall conduct a de novo review hearing and shall render a decision, based on the record of proceedings before the board and the evidence and/or or information, or both, submitted to the hearing officer. The hearing officer shall determine which of the following actions should be taken relative to the employee teacher: Cancellation of the employment contract, a suspension of the employee teacher, with or without pay, a reprimand, other disciplinary action, or no action against the employee teacher. The hearing officer shall render a written decision, with findings of fact and conclusions of law, within 30 days after its hearing. Expenses of the hearing officer shall be paid by the State Department of Education. Should a hearing officer set aside the cancellation of a teacher's contract, the teacher shall be entitled to restitution of any unpaid compensation.

"(b) All appeals of a final decision of the hearing officer shall lie with the Alabama Court of Civil Appeals. An appeal by either party shall be perfected by filing a written notice of appeal with the Clerk of the Court of Civil Appeals within 21 days after the receipt of the final written decision of the hearing officer. Failure to file a timely notice of appeal shall render the decision of the hearing officer final, in which case the employing board shall take possession of the record of the hearing and shall maintain such record for a period of three years. The Court of Civil Appeals shall have discretion to refuse to hear appeals of final decisions of a hearing officer pursuant to this article. Review by the Court of Civil Appeals pursuant to this article is not a matter of right, but of judicial discretion, and an appeal may be granted only when the court determines there are special and important reasons for granting the appeal. Within 30 days after an appeal is granted, the hearing officer shall transmit the record to the clerk, with the appealing party bearing the costs associated with the preparation and transmission of the record and transcript of the hearing. The decision of the hearing officer shall be affirmed on appeal unless the Court of Civil Appeals finds the decision arbitrary and capricious, in which case the court may order that the parties conduct another hearing consistent with the procedures of this article.

§16-24-20.

"(a) Notices which are required to be given to the teacher shall be served by personal service, by United States registered or certified mail with postage prepaid thereon to the teacher's last known address, or by private mail carrier for overnight delivery, signature required, with postage prepaid thereon to the teacher's last known address.

"(b) If a teacher should timely file a contest from a decision as provided in this article, the employing board and the teacher shall, within seven days of such filing, either (1) mutually agree upon a person to hear the teacher's contest, or (2) submit a joint request for a panel of arbitrators to the Federal Mediation and Conciliation Services' Office of Arbitration Services (FMCS). The joint request shall specify that the parties prefer a hearing officer who is experienced in employment law. Thereafter, FMCS shall submit to each party an identical list of names of persons chosen to serve as a hearing officer in such matter. Each party shall have 10 days from the date of receipt of the list to strike any name to which it objects, number the remaining names in the order of preference, and return the list to FMCS. If a party does not return the list within the time specified, all persons named therein shall be deemed acceptable. From among the persons who have been approved on both lists, and in accordance with the designated order of mutual preference, FMCS shall invite the acceptance of a hearing officer to serve. If the parties fail to agree upon any of the persons named, if those named decline, or if for any other reason the appointment cannot be made from the submitted lists, FMCS shall make the appointment from among other members of the panel. FMCS will formally appoint the hearing officer, who shall be known for purposes of this article as the "hearing officer."

"(c) During all hearings conducted before a hearing officer pursuant to this article, the hearing officer may consider the employment history of the teacher, including, but not limited to, matters occurring in previous years. Testimony and exhibits shall be admitted into evidence at the discretion of the hearing officer. The hearing officer shall also have the authority and discretion to exclude or limit unnecessary or cumulative evidence. Unless the teacher chooses a public hearing, expressly waives his or her right to testify, or offers the hearing transcript or record, or any part thereof, into evidence in a criminal proceeding, no testimony or statement offered by the teacher during or in connection with the board hearing or hearing before the hearing officer shall constitute a waiver of the right of the teacher not to testify in a criminal proceeding and no part of the transcript or record of the proceedings that memorializes or evidences any statement or testimony by the teacher before the board or the hearing officer shall be admissible in any criminal proceeding in which the teacher is a defendant and which arises out of or relates to the facts and circumstances on which the proposed action is based. Nothing in this subsection shall preclude the proffer or consideration of the transcript or the decision of the board in any appeal brought pursuant to Section 16-24-10.

"(d) No action shall lie for the recovery of damages for the breach of any employment contract of a teacher in the public schools."

Section 2. This act shall become effective immediately following its passage and approval by the Governor, or its otherwise becoming law.

Education

Schools

Teacher Tenure

Crimes and Offenses

Criminal Law and Procedure

Sex Crimes

Children

Code Amended