Can an Arkansas school district still proceed with a superintendent's termination recommendation when the legally required hearing wasn't held within the five-to-ten-day window?

Plain-English summary

State Senator Linda Chesterfield asked the AG three questions about the Public School Employee Fair Hearing Act (A.C.A. §§ 6-17-1701 to -1705) on behalf of a constituent. A non-licensed school employee had received a superintendent's recommendation of termination. The employee properly requested a hearing under § 6-17-1703(d). The school district did not hold the hearing within the statutory window of 5 to 10 days after the request (§ 6-17-1705(a)(1)); the hearing was instead scheduled for mid-August. Chesterfield wanted the AG to address whether: (1) it was unlawful or unfair to proceed with the recommendation; (2) untimely scheduling required dismissal of the recommendation; (3) the district's untimeliness amounted to a "default judgment" for the employee, mirroring how an employee's untimely hearing request would forfeit the right to a hearing under § 6-17-1703(d).

AG Dustin McDaniel declined to answer. His reasons were two:

First, the long-standing policy of the AG's office is to decline opinions on matters in litigation or pending before an administrative body. The remedies Chesterfield asked about would be exactly the arguments the employee would advance at the upcoming mid-August hearing. For the AG to opine on them in advance would be to put the AG's thumb on the scale of an active administrative proceeding.

Second, A.C.A. § 25-16-701 (Repl. 2002) bars the AG from engaging in the private practice of law. Speaking to the availability of remedies for one party in an administrative dispute could be seen as rendering advice to that party. The AG declined to cross that line.

The opinion took a question presented as a generic legal inquiry and treated it correctly as a request that, in substance, would have given a specific litigant tactical advice. The AG identified the procedural posture (hearing pending, remedies will be raised there) and held the line.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

When does the AG decline to give an opinion?
The AG identifies two recurring categories of decline: (1) matters in litigation or pending before an administrative body, where opining would interfere with the active proceeding; and (2) requests that, in substance, ask the AG to render private legal advice to a particular party, which A.C.A. § 25-16-701 prohibits.

What is the Public School Employee Fair Hearing Act?
A.C.A. §§ 6-17-1701 to -1705 governs the hearing process when a superintendent recommends termination of a non-licensed school employee. § 6-17-1703(d) requires the employee to request a hearing in writing within a set timeframe (failure forfeits the right to a hearing). § 6-17-1705(a)(1) requires the district to hold the hearing no fewer than five nor more than ten days after the request.

Did the AG say the district was in the wrong?
The opinion takes as a given (for purposes of explaining why it is declining) that the district did not hold the hearing within the statutory window. The AG explicitly noted the district might contend otherwise and disclaimed any comment on the merits of any such contention.

What can a school employee do if the district fails to hold a timely hearing?
The AG didn't say, by design. Possible remedies include arguing at the hearing that the recommendation should be dismissed for procedural noncompliance, seeking declaratory or injunctive relief in circuit court, or pursuing administrative review depending on the district's policies. Those are the kinds of arguments the AG identified as squarely belonging to the employee's hearing, not to AG opinion.

Could a school board's failure to hold a timely hearing be a "default judgment" for the employee?
That was Chesterfield's third question. The AG declined to opine. The argument has surface appeal (asymmetry: an employee's untimely request forfeits the hearing right under § 6-17-1703(d), so why shouldn't a district's untimely hearing forfeit the recommendation?) but also has counterarguments (the Act may not contemplate a default-for-the-employee remedy; the appropriate sanction may be a different one). The AG let the hearing officer or a reviewing court resolve it.

Background and statutory framework

The Public School Employee Fair Hearing Act, A.C.A. §§ 6-17-1701 to -1705 (Repl. 2013), governs termination recommendations for non-licensed school employees. The Act sets up a quasi-administrative hearing process before the school board, with timing requirements on both sides:

• Employee's side: § 6-17-1703(d) sets a deadline for requesting a hearing; failure waives the right.
• District's side: § 6-17-1705(a)(1) sets the hearing window at no fewer than 5 nor more than 10 days after the request.

The Act does not specify what happens when the district itself misses its window. That gap creates the substantive legal question Chesterfield raised, and is what makes the question functionally a question of remedies for one side of a pending case.

A.C.A. § 25-16-701 (Repl. 2002) is the AG's general jurisdictional limit: the AG cannot engage in the private practice of law. This bar overlaps with the long-standing policy declining to opine on matters in litigation or pending before an administrative body. Op. Att'y Gen. 2010-128 is a representative example of that practice.

Citations

• A.C.A. §§ 6-17-1701 to -1705 (Repl. 2013) (Public School Employee Fair Hearing Act)
• A.C.A. § 6-17-1703(d) (employee's request deadline and waiver)
• A.C.A. § 6-17-1705(a)(1) (district's 5-to-10-day hearing window)
• A.C.A. § 25-16-701 (Repl. 2002) (AG cannot engage in private practice of law)
• Op. Att'y Gen. 2010-128 (declined to opine on pending matter)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2014-083
August 1, 2014

The Honorable Linda Pondexter Chesterfield
State Senator
12 Keo Drive
Little Rock, Arkansas 72206

Dear Senator Chesterfield:

You requested my opinion on the legality of a school board's failure to hold within the time specified by law a hearing on a superintendent's recommendation to terminate a non-licensed employee, and on whether certain remedies are available as consequences of the board's failure.

I understand your questions were prompted by an inquiry from a non-licensed school employee whose termination was recommended and who properly requested a hearing, which was not held within the time specified by law but is scheduled to be held in mid-August.

I respectfully decline to state an opinion because the remedies you suggest likely will be advanced at the hearing. It is this office's long-standing policy to decline to issue opinions on matters in litigation or pending before an administrative body.

Additionally, as Attorney General, I do not engage in the private practice of law. My comment on the remedies' availability could be seen as rendering advice to the employee.

Assistant Attorney General J. M. Barker prepared this opinion, which I approve.

Attorney General
DM/JMB:cyh