REGULATIONS
Vol. 41 Iss. 11 - January 13, 2025

TITLE 8. EDUCATION
STATE BOARD OF EDUCATION
Chapter 90
Fast-Track

TITLE 8. EDUCATION

STATE BOARD OF EDUCATION

Fast-Track Regulation

Title of Regulation: 8VAC20-90. Procedure for Adjusting Grievances (amending 8VAC20-90-10, 8VAC20-90-70).

Statutory Authority: §§ 22.1-16 and 22.1-308 of the Code of Virginia.

Public Hearing Information: No public hearing is currently scheduled.

Public Comment Deadline: February 12, 2025.

Effective Date: February 27, 2025.

Agency Contact: Jim Chapman, Director of Board Relations, Department of Education, James Monroe Building, 101 North 14th Street, 25th Floor, Richmond, VA 23219, telephone (804) 750-8750, or email jim.chapman@doe.virginia.gov.

Basis: The State Board of Education's overall regulatory authority is found in § 22.1-16 of the Code of Virginia. The board's regulatory authority over grievance procedures is found in § 22.1-309 of the Code of Virginia.

Purpose: The amendments are essential to protect the public health, safety, or welfare as § 22.1-308 A 9 of the Code of Virginia requires the board to prescribe a grievance procedure that includes the provisions of §§ 22.1-309 through 22.1-313 of the Code of Virginia.

Rationale for Using Fast-Track Rulemaking Process: This rulemaking is expected to be noncontroversial and therefore appropriate for the fast-track rulemaking process because the proposed changes are required by Virginia statute and the agency is not exercising discretion in the changes.

Substance: The amendments add and amend definitions and update the regulation to comport with legislative changes concerning procedures for hearings and school board determinations.

Issues: The primary advantage to the public, the agency, and the Commonwealth is that the amendments effectuate changes made by the Virginia General Assembly. There are no disadvantages to the public, the agency, or the Commonwealth.

Department of Planning and Budget Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia and Executive Order 19. The analysis presented represents DPB's best estimate of the potential economic impacts as of the date of this analysis.1

Summary of the Proposed Amendments to Regulation. The State Board of Education (board) proposes several amendments to 8VAC20-90, Procedure for Adjusting Grievances (regulation), to reflect the current Code of Virginia. Changes to relevant portions of the Code of Virginia occurred due to Chapter 875 of the 2020 Acts of Assembly (Chapter 875), Chapter 1137 of the 2020 Acts of Assembly (Chapter 1137), and Chapter 477 of the 2021 Acts of Assembly (Chapter 477).

Background. Chapter 875 amends § 22.1-309 of the Code of Virginia and states that "In the event a division superintendent determines to recommend dismissal of any teacher, the teacher may request a hearing." Prior to Chapter 875, § 22.1-311 A stated: "Upon a timely request for a hearing pursuant to 22.1-309, the school board or, at the option of the school board, a hearing officer appointed by the school board shall set a hearing within 15 days of the request and the teacher shall be given at least five days' written notice of the time and the place." Chapter 875 amended this to: (i) add another type of hearing option, (ii) remove the mandate that the hearing be set "within 15 days of the request," and (iii) increase the minimum number of days of written notice given to the teacher from five to 10. Consequently, this sentence in § 22.1-311 A became: "Upon a timely request for a hearing pursuant to 22.1-309, the school board or, at the option of the school board, a hearing officer appointed by the school board or a three-member fact-finding panel shall set a hearing and the teacher shall be given at least ten days' written notice of the time and the place." Chapter 875 also added § 22.1-311 C, which specifies requirements if a three-member fact-finding panel is used. Among the requirements is that "The teacher and the division superintendent shall each select one panel member, and the two panel members so selected shall select an impartial hearing officer to serve as the chairman of the panel." The board proposes to amend 8VAC20-90-70 of the regulation so that it is consistent with the changes that occurred in Chapter 875.

Chapters 1137 and 477. The board also proposes to amend 8VAC20-90-10 to conform the definition of "grievance" and add a definition of "military status," pursuant to Chapter 1137 and Chapter 477, respectively. Chapter 1137, in part, added sexual orientation and gender identity to the list of bases for which discrimination would give employees grievance rights. Chapter 477 created a new definition for "military status," which the board proposes to adopt in its entirety.

Estimated Benefits and Costs: By amending the regulation to be consistent with statute, the law in effect would not change. Nevertheless, it may be beneficial in that it would inform interested parties who read this regulation but not the statute of the actual law in effect. According to the Department of Education (DOE), the agency is not aware of any three-member fact finding panels having been convened since the 2020 enactment of Chapter 875. Additionally, DOE does not track how many hearings occur annually.

Businesses and Other Entities Affected. All the proposed amendments are essentially already in effect through legislation. The legislation potentially affects teachers who have been recommend for dismissal and the 131 public school divisions in the Commonwealth.2 The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.3 An adverse impact is indicated if there is any increase in net cost or reduction in net benefit for any entity, even if the benefits exceed the costs for all entities combined.4 As the proposed amendments do not have impact beyond better informing the public of the law in effect, no adverse impact is indicated.

Small Businesses5 Affected.6 The proposed amendments do not adversely affect small businesses.

Localities7 Affected.8 The proposed amendments neither disproportionately affect any particular locality nor introduce costs for local governments.

Projected Impact on Employment. The proposed amendments do not affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments do not affect the use and value of private property or real estate development costs.

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1 Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

2 Data source: DOE.

3 Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

4 Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation. As a result, DPB has adopted a definition of adverse impact that assesses changes in net costs and benefits for each affected Virginia entity that directly results from discretionary changes to the regulation.

5 Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

6 If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

7 "Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

8 Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The State Board of Education thanks the Department of Planning and Budget for its thorough economic impact analysis concerning this action.

Summary:

Pursuant to Chapter 875 of the 2020 Acts of Assembly, the amendments permit a school board to conduct a teacher grievance hearing before a three-member fact-finding panel consisting of one member selected by the teacher, one member selected by the division superintendent, and an impartial hearing officer selected by the other two panel members to serve as the chairman of the panel. The school board continues to have the option of appointing a hearing officer or conducting the hearing itself. The amendments also remove the requirement that a teacher grievance hearing be set within 15 days of the request for such hearing and extends to 10 days the minimum period of advanced written notice to the teacher of the time and place of such hearing. Pursuant to Chapter 1137 of the 2020 Acts of Assembly and Chapters 477 and 478 of the 2021 Acts of Assembly, Special Session I, the definition of "grievance" is updated and a definition of "military status" is added.

8VAC20-90-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise.

"Business day" means any day that the relevant school board office is open.

"Days" means calendar days unless a different meaning is clearly expressed in this procedure. Whenever the last day for performing an act required by this procedure falls on a Saturday, Sunday, or legal holiday, the act may be performed on the next day that is not a Saturday, Sunday, or legal holiday.

"Dismissal" means the dismissal of any teacher within the term of such teacher's contract.

"Grievance" means, for the purpose of Part II (8VAC20-90-20 et seq.), a complaint or a dispute by a teacher relating to his the teacher's employment, including but not necessarily limited to (i) disciplinary action, including dismissal; (ii) the application or interpretation of (a) personnel policies, (b) procedures, (c) rules and regulations, (d) ordinances, and (e) statutes; (iii) acts of reprisal against a teacher for filing or processing a grievance, or participating as a witness in any step, meeting, or hearing related to a grievance, or serving as a member of a fact-finding panel; or and (iv) complaints of discrimination on the basis of race, color, creed, religion, political affiliation, handicap disability, age, national origin, or sex, pregnancy, childbirth or related medical conditions, marital status, sexual orientation, gender identity, or military status. Each school board shall have the exclusive right to manage the affairs and operations of the school division. "Grievance" means, for the purposes of Part III (8VAC20-90-60 et seq.), a complaint or a dispute involving a teacher relating to his employment involving dismissal. The Accordingly, the term "grievance" shall not include a complaint or dispute by a teacher relating to (i) the establishment and revision of wages or salaries, position classifications, or general benefits; (ii) suspension of a teacher or nonrenewal of the contract of a teacher who has not achieved continuing contract status; (iii) the establishment or contents of ordinances, statutes, or personnel policies, procedures, rules, and regulations; (iv) failure to promote; (v) discharge, layoff, or suspension from duties because of decrease in enrollment, decrease in enrollment in or abolition of a particular subject, or insufficient funding; (vi) hiring, transfer, assignment, and retention of teachers within the school division; (vii) suspension from duties in emergencies; (viii) the methods, means, and personnel by which the school division's operations are to be carried on; or (ix) coaching or extracurricular activity sponsorship. While these management rights are reserved to the school board, failure to apply, where applicable, these the rules, regulations, policies, or procedures as written or established by the school board is grievable.

"Hearing officer" means an impartial hearing officer from outside the school division who possesses some knowledge and expertise in public education and education law and who is capable of presiding over an administrative hearing.

"Military status" means status (i) as a member of the uniformed forces, as defined in 10 USC § 101(a)(5), of the United States or a reserve component thereof named under 10 USC § 10101, (ii) a veteran as defined in 38 USC § 101(2), or (iii) a dependent as defined in 50 USC § 3911(4), except that the support provided by the service member to the individual shall have been provided 180 days immediately preceding an alleged action that, if proven true, would constitute unlawful discrimination under this section instead of 180 days immediately preceding an application for relief under 50 USC Chapter 50.

"Personnel file" means, for the purposes of Part III (8VAC20-90-60 et seq.), any and all memoranda, entries, or other documents included in the teacher's file as maintained in the central school administration office or in any file regarding the teacher maintained within a school in which the teacher serves.

"Teacher" or "teachers" means, for the purposes of Part II (8VAC20-90-20 et seq.), all employees of the school division involved in classroom instruction and all other full-time employees of the school division except those employees classified as supervising employees. "Teacher" means, for the purposes of Part III (8VAC20-90-60 et seq.), all regularly licensed professional public school personnel employed by any school division under a written contract as provided by § 22.1-302 of the Code of Virginia as a teacher or as an assistant principal, principal, or supervisor as provided by § 22.1-294 of the Code of Virginia.

"Shall file," "shall respond in writing," or "shall serve written notice" means the document is either delivered personally or is mailed by registered or certified mail, return receipt requested, and postmarked within the time limits prescribed by this procedure to the grievant or office of the proper school board representative.

"Supervisory employee" means any person having authority in the interest of the board State Board of Education to (i) to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees; and (ii) to direct other employees; or (iii) to adjust the grievance of other employees; or (iv) to recommend any action set forth in clause (i), (ii), or (iii) above of this definition; provided that the authority to act as set forth in clause (i), (ii), (iii), or (iv) requires the exercise of independent judgment and is not merely routine and clerical in nature.

"Written grievance appeal" means a written or typed statement describing the event or action complained of, the date of the event or action complained of, and a concise description of those policies, rules, regulations, or statutes upon which the teacher bases his the claim. The grievant shall specify what he the grievant expects to obtain through use of the grievance procedure. A written grievance appeal shall be on forms prescribed by the State Board of Education and supplied by the local school board.

8VAC20-90-70. Procedure for dismissals.

A. Notice to teacher of recommendation for dismissal.

1. In the event a division superintendent determines to recommend dismissal of any teacher, written notice shall be sent to the teacher on forms prescribed by the State Board of Education notifying him the teacher of the proposed dismissal and informing the teacher that within 10 business days after receiving the notice, the teacher may request a hearing before the school board or, at the option of the school board, a hearing officer appointed by the school board, as provided in § 22.1-311 of the Code of Virginia.

2. During such 10-business-day period and thereafter until a hearing is held in accordance with the provisions herein of this subsection, if one is requested by the teacher, the merits of the recommendation of the division superintendent shall not be considered, discussed, or acted upon by the school board except as provided for herein in this subsection.

3. At the request of the teacher, the division superintendent shall provide the reasons for the recommendation in writing or, if the teacher prefers, in a personal interview. In the event a teacher requests a hearing pursuant to § 22.1-311 or 22.1-312 of the Code of Virginia, the division superintendent shall provide, within 10 days of the request, the teacher, or his the teacher's representative, with the opportunity to inspect and copy his the teacher's personnel file and all other documents relied upon in reaching the decision to recommend dismissal. Within 10 days of the request of the division superintendent, the teacher, or his the teacher's representative, shall provide the division superintendent with the opportunity to inspect and copy the documents to be offered in rebuttal to the decision to recommend dismissal. The division superintendent and the teacher or his the teacher's representative shall be under a continuing duty to disclose and produce any additional documents identified later that may be used in the respective parties' cases-in-chief. The cost of copying such documents shall be paid by the requesting party.

4. Upon a timely request for a hearing, the school board or, at the school board's option of the school board, a hearing officer appointed by the school board shall set a hearing within 15 days of the request and the teacher shall be given at least five days' written notice of the time and the place of the hearing.

B. Procedure for hearing.

1. The Upon a timely request for a hearing shall be conducted by the pursuant to subsection A of this section, the school board or, at the school board's option of the school board, a hearing officer appointed by the school board or a three-member fact-finding panel shall set a hearing, and the teacher shall be given at least a 10-day written notice of the time and the place. The teacher and the division superintendent may be represented by legal counsel or other representatives. The hearing shall be private, unless the teacher requests a public the hearing to be public. At the hearing, the teacher may appear with or without a representative and be heard, presenting testimony of witnesses and other evidence. The school board or hearing officer, as the case may be, shall establish the rules for the conduct of the hearing, and such rules shall include the opportunity for the teacher and the division superintendent to make an opening statement and to present all material or relevant evidence, including the testimony of witnesses, and the right of all parties to cross-examine the witnesses. Witnesses may be questioned by the school board or hearing officer.

2. The parties shall produce such additional evidence as the school board or hearing officer may deem necessary to an understanding and determination of the dispute. The school board or hearing officer shall determine the relevancy and materiality of the evidence offered. All evidence shall be taken in the presence of the school board or hearing officer and of the parties. Each school board may appoint an impartial hearing officer from outside the school division to conduct hearings pursuant to this section. A hearing officer shall not have been involved in the recommendation of dismissal as a witness or a representative. A hearing officer shall possess some knowledge and expertise in public education and education law and be capable of presiding over an administrative hearing. The hearing officer shall schedule and preside over such hearings and shall create a record or recording of such proceedings. The hearing officer shall make a written recommendation to the school board, a copy of which shall be provided to the teacher. The hearing officer shall transmit the recommendation and the record or recording of the hearing to the school board as soon as practicable and no more than 10 business days after the hearing. In the event of a hearing before a hearing officer, the school board may make its decision upon the record or recording of such hearing, pursuant to subsection C of this section, or the school board may elect to conduct a further hearing to receive additional evidence by giving written notice of the time and place to the teacher and the division superintendent within 10 business days after the board receives the record or recording of the initial hearing. Such notice shall also specify each matter to be inquired into by the school board.

3. Exhibits offered by the Each school board may elect for a three-member fact-finding panel to conduct hearings pursuant to this section. The teacher or and the division superintendent may be received in evidence by the school board or shall each select one panel member, and the two panel members so selected shall select an impartial hearing officer and, when so received, shall be marked and made a part of the record. to serve as the chairman of the panel. The fact-finding panel shall schedule and preside over such hearings and shall create a record or recording of such proceedings. The fact-finding panel shall make a written recommendation to the school board, a copy of which shall be provided to the teacher. The fact-finding panel shall transmit the recommendation and the record or recording of the hearing to the school board as soon as practicable but in no case more than 10 business days after the hearing. In the event of a hearing before a fact-finding panel, the school board may make its decision upon the record or recording of such hearing, pursuant to subsection C of this section, or the school board may elect to conduct a further hearing to receive additional evidence by giving written notice of the time and place of the hearing to the teacher and the division superintendent within 10 business days after the board receives the record or recording of the initial hearing. Such notice shall also specify each matter to be inquired into by the school board.

4. A stenographic record or tape recording of the proceedings any hearing conducted pursuant to this section shall be taken made. The two parties shall share the cost of the recording equally. The In proceedings concerning grievances not related to dismissal, the recording may be dispensed with entirely by mutual consent of the parties. In such proceedings, if the recording is not dispensed with, the two parties shall share the cost of the recording equally; if either party requests a transcript, that party shall bear the expense of its preparation. In cases of dismissal, the record or recording of the proceedings shall be preserved for a period of six months. If the school board requests that a transcript of the record or recording be made at any time prior to expiration of the six-month period, it shall be made and copies shall be furnished to both parties. The school board shall bear the expense of the transcription.

5. The teacher shall bear his own expenses. The school board shall bear the expenses of the division superintendent and the hearing officer.

6. 5. Witnesses who are employees of the school board shall be granted release time if the hearing is held during the school day. The hearing shall be held at the school in which most witnesses work, if feasible.

7. In the event of a hearing conducted by a hearing officer, the recommendation of the hearing officer shall be based exclusively upon the evidence presented at the hearing. Upon the hearing officer's own motion or upon application by the teacher or the division superintendent, the hearing officer may reopen the hearing for the purpose of hearing after-discovered evidence upon a finding of good cause by the hearing officer at any time before his recommendation is due. The hearing officer shall transmit his written recommendation and a record or recording of the hearing to the school board as soon as practicable and no more than 10 business days after the hearing.

8. In the event of a hearing by a hearing officer, the school board may make its decision upon the record or recording of such hearing or the school board may elect to conduct a further hearing to receive additional evidence. The school board must hold such further hearing as soon as practicable and must give written notice of the time and place of such further hearing to the division superintendent and the teacher within 10 business days after the board received the record or recording of the initial hearing. The notice must specify each matter to be inquired into by the school board. The school board shall determine the procedure to be followed at such further hearing.

6. The school board, hearing officer, or three-member fact-finding panel, as the case may be, shall establish the rules for the conduct of the hearing, and such rules shall include the opportunity for the teacher and the division superintendent to make an opening statement and to present all material or relevant evidence, including the testimony of witnesses, and the right of all parties to cross-examine the witnesses. Witnesses may be questioned by the school board or hearing officer.

7. The parties shall produce such additional evidence as the school board, hearing officer, or three-member fact-finding panel may deem necessary to an understanding and determination of the dispute. The school board, hearing officer, or three-member fact-finding panel shall determine the relevancy and materiality of the evidence offered. All evidence shall be taken in the presence of the school board, hearing officer, or three-member fact-finding panel and of the parties.

8. Exhibits offered by the teacher or the division superintendent may be received in evidence by the school board or hearing officer and, when so received, shall be marked and made a part of the record.

C. School board determination.

1. The school board shall retain exclusive and final authority over matters concerning employment and supervision of the school board's personnel, including dismissals and suspensions.

2. In the event of a hearing before the school board, the school board shall give the teacher its written decision as soon as practicable and but in no case more than 30 days after the hearing. The decision of the school board shall be reached after considering the evidence and information presented at the school board hearing.

2. 3. In the event of a hearing before a hearing officer followed by a further hearing by the school board pursuant to subdivision B 8 of this section appointed by the school board or a three-member fact-finding panel, the school board shall give the teacher its written decision as soon as practicable and but in no case more than 30 days after such further receiving the record or recording of the hearing; however, should there be a further hearing before the school board, such decision shall be furnished the teacher as soon as practicable but in no case more than 30 days after such hearing. The decision of the school board shall be reached after considering the record or recording of the initial hearing, the recommendations of the hearing officer or three-member fact-finding panel, and the evidence and information presented at the further hearing before the school board.

3. In the event of a hearing before a hearing officer in cases in which no further hearing is conducted by the school board, the school board shall give the teacher its written decision as soon as practicable and no more than 30 days after receiving the record or recording of the hearing. The decision of the school board shall be reached after considering the record or recording of the hearing and the recommendations of the hearing officer.

4. The school board may dismiss or suspend a teacher upon a majority vote of a quorum of the school board.

5. The school board's attorney, assistants, or representative, if he the attorney, assistants or they representative represented a participant in the prior proceedings; the grievant; the grievant's attorney or representative; and, notwithstanding the provisions of § 22.1-69 of the Code of Virginia, the superintendent shall be excluded from any executive session of the school board that has as its purpose reaching a decision on a grievance. However, immediately after a decision has been made and publicly announced, as in favor of or not in favor of the grievant, the school board's attorney or representative and the superintendent may join the school board in executive session to assist in the writing of the decision.

6. In those instances when licensed personnel are dismissed or resign due to a conviction of any felony, any offense involving the sexual molestation, physical or sexual abuse, or rape of a child, any offense involving drugs, or due to having become the subject of a founded case of child abuse or neglect, the local school board shall notify the State Board of Education within 10 business days of such dismissal or the acceptance of such resignation.

VA.R. Doc. No. R25-7129; Filed December 18, 2024