What hearing did a tenured Kentucky school district employee need before dismissal when no later hearing was available?

Plain-English summary

The Fayette County Board of Education asked what process was owed before dismissing a classified school employee who had a statutory right to renewal and no later hearing remedy. The Attorney General said an abbreviated meeting to hear the charge and answer it was insufficient in that setting. Relying on a Sixth Circuit decision involving a Fayette County custodian, it described a meaningful pre-termination hearing with reasonable notice, an opportunity to attend with counsel, to present evidence and witnesses, to challenge adverse evidence through cross-examination, an impartial decision-maker, and a statement of the reasons and evidence supporting the result.

The opinion gave no fixed constitutional number of notice days. It said notice had to allow reasonable time to obtain counsel and prepare a defense, and looked to the 20-day minimum in KRS 13B.050(1) for guidance in this instance. It also said minimal due process did not require a subpoena-capable hearing body, although outside witnesses could be compelled only if the body had that power. The AG limited its analysis to employees with the protected employment interest and no post-termination remedy.

Currency note

This opinion was issued in 2005. 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

Q: Was a brief chance to answer the superintendent enough before dismissal? A: The AG said no when the classified employee had no meaningful later remedy. The pre-termination hearing itself had to provide the fuller procedural protections described in the opinion.

Q: How much advance notice did the school employee need?
A: Enough to retain counsel and prepare a defense. The AG said there was no fixed constitutional period but looked to the 20-day minimum for an administrative hearing under KRS 13B.050(1) for guidance.

Q: Could the employee call witnesses and question opposing witnesses?
A: Yes. The opinion included witness presentation and cross-examination among the protections for a meaningful hearing, while saying subpoena power was not itself a minimum due-process requirement.

Q: Could the superintendent decide a charge the superintendent had already chosen to bring? A: The AG said an impartial decision-maker was required. If the superintendent had already decided to dismiss, the opinion called for a different person to make the final hearing determination or for a different official to make the initial recommendation.

Q: Did the decision-maker need to issue a formal legal opinion?
A: No. The AG said the decision-maker should state the reasons and evidence relied on, orally or in writing in the record, without necessarily issuing formal findings.

Background and statutory framework

KRS 161.011(5)(b) gave certain full-time classified employees a renewal right after four continuous years, absent dismissal for cause. The opinion said that right created a protected property interest. KRS 161.011(9)(c) left local school boards to adopt relevant procedures, while classified employees lacked the statutory post-termination hearing available to teachers. The AG relied on Mitchell v. Fankhauser to explain why a meaningful pre-termination hearing was needed in those circumstances and discussed KRS 160.390(1) in assigning personnel responsibility to the superintendent.

Citations and references

Statutes: KRS 161.011(5)(b); KRS 161.011(9)(c); KRS 160.390(1).

Case: Mitchell v. Fankhauser, 375 F.3d 477 (6th Cir. 2004).

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_a4bfe822-df6a-41f2-9c6b-dcd4a2032e6f/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_a4bfe822-df6a-41f2-9c6b-dcd4a2032e6f

Original opinion text

OAG 05-006
July 6, 2005
Subject:

Constitutional requirements for a due process hearing prior to terminating the employment of a classified public school employee when statutes give no post-termination remedy

Requested by:

Robert L. Chenoweth, Esq., Legal Counsel
Fayette County Board of Education

Written by:

James M. Herrick
Assistant Attorney General

Syllabus:

Minimum standards of due process require reasonable notice of hearing, right to appear and produce evidence, right to call witnesses and conduct crossexamination, right to counsel, impartial decisionmaker, and statement of basis for decision.

Statutes construed:
OAGs cited:

KRS 161.011, KRS 160.300, KRS 160.390

OAG 90-129, OAG 92-141, OAG 94-37

Constitutional
provisions construed:

U.S. Const. Amend. XIV

Opinion of the Attorney General
KRS 161.011 establishes a personnel system for classified employees of local school districts. Classified employees, those employees who are not required to be certified by the Education Professional

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Standards Board, serve on a year-to-year basis. Pursuant to KRS
161.011(5)(b), a classified employee who has worked full-time for a
continuous period of four years gains the right to have his employment
contract renewed for another year unless he is dismissed for cause.
This status creates a property interest in the employment for due
process purposes. Cf. Riggs v. Commonwealth, 734 F.2d 262 (6th Cir.
1984).
A classified employee who is dismissed for cause has no post-termination statutory right to a hearing or other procedural remedy, unlike teachers, who are entitled by KRS 161.790 to an administrative hearing conducted under KRS Chapter 13B. The only opportunity for a classified employee to be heard is at whatever type of pre-termination hearing is afforded by policies enacted by local school boards pursuant to KRS 161.011(9)(c). Robert L. Chenoweth, legal counsel for the Fayette County Board of Education, has requested an opinion as to what elements must be present in this pre-termination hearing to comport with due process of law under the Fourteenth Amendment to the United States Constitution. The federal courts have recently pronounced upon this issue. In Mitchell v. Fankhauser, 375 F.3d 477 (6th Cir. 2004), the Sixth Circuit Court of Appeals held that the “abbreviated” pre-termination hearing a school custodian received under the Fayette County Board of Education’s system did not give him adequate constitutional protection: Mitchell was called in to meet with [the superintendent] and various other [school] officials. Mitchell was then informed of the allegations that had been made against him
—by people who were not present at the meeting—to the
effect that Mitchell had helped another custodian steal
school property. At the meeting, Mitchell admitted only to
having taken a sewing-machine cabinet home with him,
but then returning it to the school.
Mitchell, 375 F.3d at 478-79. This meeting constituted an attempt by
the school district to comply with Cleveland Bd. of Education v. Louder-

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mill, 470 U.S. 532 (1985), a case in which the Supreme Court described
the essentials of a pre-termination due process hearing as “oral or written notice of the charge against [the employee], an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Loudermill, 470 U.S. at 546. The Sixth Circuit ruled in Mitchell that compliance with Loudermill is not enough to provide due process when there is no post-termination remedy. Rather, the “abbreviated” form of a Loudermill hearing presupposes the availability of “a more ‘meaningful’ post-termination hearing. This is not to say that two hearings are always required to satisfy due process. If the pre-termination hearing is more ‘meaningful,’ ... then no post-termination hearing would be necessary.” Mitchell, at 481. Conduct of hearing For guidance as to what constitutes a “meaningful” hearing for due process purposes, the Mitchell court referred to Carter v. Western Reserve Psychiatric Habilitation Center, 767 F.2d 270 (6th Cir. 1985), citing the following analysis: Where, as here, a court has approved an abbreviated pretermination hearing, due process requires that a discharged employee’s post-termination hearing be substantially more “meaningful.” At a minimum, this requires that the discharged employee be permitted to attend the hearing, to have the assistance of counsel, to call witnesses and produce evidence on his own behalf, and to know and have an opportunity to challenge the evidence against him. Mitchell, at 480-81 (quoting Carter, 767 F.2d at 273). Logically, then, where there is no post-termination hearing, the pre-termination hearing must comply with all the constitutional requirements to which a “meaningful” post-termination hearing would be subject.

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Carter establishes that due process gives the terminated employee a right to be present at the hearing, to have counsel assisting, to call witnesses, and to present evidence. It is not clear from the language in Carter whether the “opportunity to challenge the evidence against him” includes the right to cross-examine the employer’s witnesses. In Goldberg v. Kelly, however, the Supreme Court addressed this point. “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly, 397 U.S. 254, 269 (1970). The Supreme Court of Kentucky likewise affirmed this principle in Kaelin v. City of Louisville, 643 S.W.2d 590, 592 (Ky. 1983): “We hold that, in a trial-type adjudicatory hearing before an administrative body, the right of cross-examination is required by due process of law.” The presence of witnesses raises the practical question of subpoena power. Although a school district obviously has the inherent authority to require its own employees to be present at a hearing as witnesses for either party, witnesses from outside could only be compelled to appear if the entity conducting the hearing had subpoena power. It is not a requirement of minimal due process that an administrative hearing be held by an entity with the power to issue subpoenas. Johnston-Taylor v. Gannon, 974 F.2d 1338 (6th Cir. 1992) (table decision; text at 1992 WL 214523); Ubiotica Corp. v. FDA, 427 F.2d 376, 381 (6th Cir. 1970) (citing a deportation case, Low Wah Suey v. Backus, 225 U.S. 460 (1912)); see also Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 521 (10th Cir. 1998); Johnson v. U.S., 628 F.2d 187, 194 (D.C. Cir. 1980); DeLong v. Hampton, 422 F.2d 21, 24-25 (3rd Cir. 1970). It is, however, frequently appropriate and desirable for both sides to be able to subpoena witnesses from outside the employing agency. As we have observed in previous opinions, the local Board of Education no longer plays any role in personnel actions other than to receive notice of the action taken by the superintendent. OAG 90-129; OAG 92-141; OAG 94-37. Accordingly, since the pre-termination hearing would not be a “proceeding before” the Board of Education, it would not fall under the board’s subpoena power conferred by KRS

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160.300. Therefore, for witnesses to be subject to subpoena, the hearing would have to be conducted under the auspices of some other entity with the statutory authority to issue subpoenas. This would most likely have to be an entity empowered to conduct hearings under KRS Chapter 13B. Notice of hearing There are further constitutional requirements for a meaningful due process hearing. Goss v. Lopez, 419 U.S. 565, 579 (1975), requires adequate notice, the timing and content of which “will depend on appropriate accommodation of the competing interests involved.” As in all applications of the Due Process Clause, the extent of the procedural protections required in a particular situation varies with the balance of public and private interests at stake. Mathews v. Eldridge, 424 U.S. 319 (1976). In Goldberg v. Kelly, supra, a seven-day notice was deemed constitutionally sufficient when it adequately disclosed the legal and factual bases for a proposed termination of welfare benefits. The Court indicated, however, that “there may be cases where fairness would require that a longer time be given.” Goldberg, at 268. Although the Goldberg Court (at 264) described the due process interest of the welfare recipient as more critical than that of a discharged government employee, that characterization was made in the context of whether or not a post-termination hearing would give the welfare recipient adequate protection. The Court evidently assumed that discharged public employees would be given a full post-termination hearing. By contrast, a classified school district employee, who is only entitled to a pre-termination hearing, stands more in need of advance notice than the hypothetical employee in Goldberg. Such an employee must at least be given more notice than the custodian in Mitchell, who apparently was called into the superintendent’s office without warning and suddenly informed of the charges, with no time to prepare a response. Since a public employee’s rights at the hearing include the right to counsel and the right to call witnesses, the school district must pro-

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vide enough notice to permit the employee a reasonable time to retain
counsel and to prepare an adequate defense. Typically, the facts involved in a termination of employment are more numerous and complex than those concerned in a termination of welfare benefits. Although there is no fixed constitutional rule on the subject, we are guided in this instance by the General Assembly’s requirement of a minimum 20-day notice for an administrative hearing as provided in KRS 13B.050(1), which governs post-termination hearings for classified state employees pursuant to KRS 18A.095(18). Impartiality of decision-maker In addition, it is an essential element of due process that the hearing be ruled upon by an impartial decision-maker. The situation of classified school district employees is distinct from cases such as Moore v. Bd. of Ed. of Johnson City Schools, 134 F.3d 781 (6th Cir. 1998), and Duchesne v. Williams, 849 F.2d 1004 (6th Cir. 1988), which were concerned only with the abbreviated “right-of-reply” hearing required by Loudermill, supra. Where the pre-termination hearing is the only remedy the tenured public employee receives, due process requires an impartial decision-maker. To ensure impartiality, “the investigative and adjudicative roles must be played by different persons” in cases “where common sense dictates” that it would be necessary “in order to avoid inevitable bias.” Nicholson v. Judicial Retirement and Removal Comm’n, 562 S.W.2d 306, 309 (Ky. 1978). Examples of inevitable bias cited by the Nicholson Court include a public or private pecuniary interest in the outcome (Gibson v. Berryhill, 411 U.S. 564 (1973); Ward v. Village of Monroeville, 409 U.S. 57 (1972)) and a judge’s personal interest when ruling on a contempt charge against an attorney under circumstances of marked personal feeling on both sides (Taylor v. Hayes, 418 U.S. 488 (1974); Mayberry v. Pennsylvania, 400 U.S. 455 (1971)). In every case, it is critical that the decision-maker in a meaningful due process hearing not be the person who is bringing the charge against the employee. Although the decision-maker may have had

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“prior involvement in some aspects of a case, ... [h]e should not ...
have participated in making the determination under review.” Goldberg, at 271. This would exclude the superintendent from acting as the final decision-maker in cases where the superintendent has previously made a determination to dismiss the employee. We recognized in OAG 90-129 that under KRS 160.390(1) the superintendent is responsible for all personnel actions, including the dismissal of classified employees. Accordingly, to comport with due process, the superintendent must either designate another individual to make pre-hearing recommendations as to dismissal of classified employees or obtain an impartial and independent hearing officer to make a final determination after the superintendent has given notice of his intent to terminate an employee. Statement of basis for determination Finally, when announcing the result of the hearing, the decisionmaker “should state the reasons for his determination and indicate the evidence he relied on, ... though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law.” Goldberg, at 271 (citation omitted). The purpose of this statement is to demonstrate compliance with the constitutional requirement that the decision “rest solely on the legal rules and evidence adduced at the hearing.” Id. At a minimum, this would require an oral or written statement in the record of the decision-maker’s basis for the determination. Conclusion The procedures outlined above represent the opinion of this office, based on the present state of the case law, as to the minimum due process to which a classified school district employee with tenure is entitled prior to termination in the absence of any post-termination remedy. We take note of the fact that the law concerning pre-termination hearings under KRS 161.011 is continuing to develop in the Sixth Circuit as other cases from Kentucky school districts are litigated.

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Pursuant to KRS 161.011(9)(c), local school boards should be advised to enact policies implementing due process hearing procedures applicable to classified employees. In the long term, it may be desirable for the General Assembly to provide for a post-termination due process hearing for classified school district employees, in order to make such extensive pre-termination procedures unnecessary. Alternatively, the legislature might choose to enact a procedure for a full pre-termination due process hearing as it has done for the termination of teachers’ contracts in KRS 161.790.

Gregory D. Stumbo
Attorney General

James M. Herrick
Assistant Attorney General