Lawyered up -- UPDATE | Arkansas Blog

Lawyered up -- UPDATE

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Yes, the lawyers' clocks are running in the Little Rock school case.

A lawyer for Superintendent Roy Brooks is trying to cancel a suspension hearing scheduled Monday. Jess Askew argues that the letter outlining reasons for Brooks' firing contains no reason that qualifies for an emergency suspension under his contract. If the hearing goes forward, Askew says he'll seek an injunction to block it. He wants time, too, to find a hearing officer from outside Little Rock.

Chip Welch, the new attorney for the School Board, replies in a letter reprinted on the jump that he disagrees in every respect.

UPDATE: Askew has fired back at Welch in a PDF form we can't readily reprint. He sounds a little touchy. He says what Welch proposes violates Brooks' contract rights, that Welch is proceeding in a way at variance with School Board direction and, for good measure, questions whether Welch has authority to act and is duly employed. You might conclude from this and previous that the fellows at Williams and Anderson simply don't like it when Katherine and Mitchell and Co. have legal representation, particularly of the vigorous sort. More volleys seem likely.

UPDATE II: Welch returns. His note to Askew, who wants to delay discussing a hearing officer:

If you're not able to do this till Friday night, my position won't change.
 
I have talked with:
 
Former Court of Appeals Judge Andree Roaf
Attorney David Hargis of Little Rock
Attorney Eric Buchanan
 
All are acceptable to us. I mentioned yesterday, I won't allow this case to be postponed.


If you want to pick one of the above, let me know. If you can't go forward till Friday evening, we will proceed as outlined.
 

LETTER FROM CHIP WELCH TO JESS ASKEW

Jess--
 
I don't agree that there are no grounds for suspension. The notice outlines areas of for-cause termination, many of which, if true, impact the day-to-day conduct of the district , morale of employees and the disposition of public money. The testimony of wtnesses will flesh out those grounds at the hearing.
 
You are free to seek your TRO. As you know, I haven't been directed to respond to that suit thus far, but I can't imagine the Federal Court will dis-enfranchise 2 of 7 School Board members. That doesn't seem to me to be "due process" so much as an attempt to change what Dr. Brooks views as the balance of power or the votes potentially against him.
 
As I mentioned last night when we spoke, I know you have your job to do and will do it well, but my mission is to get this hearing held on Monday. Obviously, I can't wait till Friday afternoon to select a hearing officer as you have suggested. As you know, my first act was to solicit a response to my inquiries concerning procedure for the hearing, whether it would be public and your thoughts on the conduct of a hearing. There's been no response other than your letter asking if we're going forward , threatening the TRO and saying that you'll get me some names Friday pm. I don't think Dr. Brooks can delay the hearing by non-cooperation in setting it up.  Therefore, I've gone back to the document and I've spent a day reading it in conjunction with the law.
 
The law seems clear that Dr. Brooks is entitled to a hearing, right of confrontation, etc. His contract gives him more process on termination with a right to various things including the hearing officer. There is no requirement however [and the caselaw so states] for a 'perfect' hearing'. Nor, now that I re-read the contract, is there a requirement for a hearing officer for the suspension hearing.
 
It is axiomatic that specific language governs general lanuage in the law of construction of contracts. The specific language of the contract says the Board "may, upon 5 days written notice conduct" the suspension hearing [not a hearing officer]. While it does go on to say that the "other safeguards "are in place, a requirement of a hearing officer would conflict with the specic language concerning who 'conducts' this hearing.
 
Also, to my knowledge, this is a hearing to suspend Dr. Brooks with pay pending his termination. The aim being to remove him from the day-to-day activities of the District. That being the case, the U.S. Supreme Court indicates there is a less stringent need for process. I'm sure you have reviewed what the U.S. Supreme Court says about the degree of procedure to be afforded in a pretermination suspension hearing. Most claims of prejudice in procedure appear to be vitiated to a large degree by a suspension with pay: The lead case is Gilbert v. Homar:
 
   " [I]n Cleveland Bd. of Ed.v. Loudermill, 470 U.S., 105 S.Ct. 1487, 84 L.Ed. 494 (1985), we concluded that a public employee dismissible only for cause was entitled to a very limited  hearing prior to his termination, to be followed by a more comprehensive post-termination hearing. Stressing that the pretermination hearing "should be an initial check against mistaken decisions--essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action," Id., at 545-546, 105 S.Ct., at 1495, we held that pretermination process need only include oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity for the employee to tell his side of the story, Id., at 546, 105 S.Ct., at 1495.  In the course of our assessment of the governmental interest in immediate termination of a tenured employee, we observed that "in those situations where the employer perceives a significant hazard in keeping the employee on the job, it can avoid the problem by suspending with pay." Id., at 544-545, 105 S.Ct., at 1495 (emphasis added; footnote omitted).

 

Relying on this dictum, which it read as "strongly suggest[ing] that suspension without pay must be preceded by notice and an opportunity to be heard in all instances," 89 F.3d, at 1015 (emphasis added), and determining on its own that such a rule would be "eminently sensible," id., at 1016, the Court of Appeals adopted a categorical prohibition: "[A] governmental employer may not suspend an employee without pay unless that suspension is preceded by some kind of pre-suspension hearing, providing the employee with notice and an opportunity to be heard." Ibid. Respondent (as well as most of his amici) makes no attempt to defend this absolute rule, which spans all types of government employment and all types of unpaid suspensions. Brief for Respondent 8, 12-13. This is eminently wise, since under our precedents such an absolute rule is indefensible. Gilbert v. Homar, 520 U.S. 924, 930, 117 S.Ct. 1807, 1812 (1997.)...."

 
Accordingly, rather than rangle over officers, I 've determined my clients should go ahead with the hearing on susprension without a hearing officer. We will chose an officer, if needed, instead prior to any termination hearing.
 
Chip


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