Jan 2004 Meeting Minutes

Planning for Teacher Reduction in Force Proceedings in 2004

On January 14, 2004, the Office of Administrative Hearings hosted a meeting to discuss lessons learned from the 2003 Reduction-in-Force process and how OAH has modified its procedures to incorporate those lessons.  The meeting was attended by over 80 individuals representing teachers, school districts and school boards, as well as the OAH director and presiding Judges from each of the OAH regional offices.

1.  In General:

While OAH's jurisdiction is dominated by the teacher reduction-in-force proceedings for six weeks every year, OAH actually is charged with a wide range of responsibilities as illustrated by these facts:

• OAH hears and decides appeals from actions by over 100 state agencies as well as 800 local agencies, school districts, and other public entities. 
• In 2002/03, over 10,000 cases were filed with OAH, and 4700 hearings were completed by OAH's thirty six Administrative Law Judges. 
• Over the last five years, OAH has experienced a greater than 50% workload increase while the number of ALJ's available to hear cases has declined by 5%.  OAH has handled the increased demand by conducting proceedings consistently statewide and by incorporating other efficiencies, although the backlog of cases waiting for hearing has increased. 

Based on its experience with the 2003 teacher lay-off season, OAH is instituting process improvements for the coming year.  In an "average" year, OAH records about seventy (70) requests for reduction in force appeal hearings, with only about one third to one half of those actually leading to the full hearing process; the remainder are withdrawn.  Last year, close to 400 hearings were requested, and two-thirds of those requests proceeded through the full process of hearing and proposed decision issuance.  Although the group consensus was that probably fewer lay-offs will be noticed in 2004 than last year, OAH is introducing procedures to make the process more efficient, regardless of the number of hearings.

2.  Calendaring Hearings with OAH and Requesting Dates in 2004: 

A.  Calendaring Considerations generally; what you need to know before requesting dates:
OAH has always made an effort to calendar hearings on dates when the requesting party, or better yet, both parties, want the hearing.  In 2003, the combination of accommodating OAH calendar clerks and anxious district counsel resulted in a calendar that was booked far in advance, but then changed almost hourly, leading to hard-feelings and confusion all around. 

For example, counsel for districts reserved blocks of dates before knowing key information such as the identity and schedule of opposing counsel, dates for spring break and STAR tests, whether suitable space was available, and the actual number of teachers who would be noticed with lay-off.  As a consequence, many of those original calendar "reservations" had to be changed.  Because time was passing, many of the rescheduled hearings were set at the very end of the statutory time period, leaving only a few days for the ALJ to complete the proposed decision.  

For 2004, OAH has reserved its entire calendar in every office from March 29 to April 30 for layoff hearings.  Hearings will not be scheduled during the first week in May so that one week is reserved for writing any decisions that are not issued earlier.  When requesting that a hearing be set, counsel will need to know these calendar boundaries as well as the following information:

• The number of teachers being noticed and a realistic estimate of the number of hearing dates needed.  For example, two days is too much for a 30-teacher layoff hearing but may be appropriate if 50 to 100 teachers are receiving notices.
• The dates of the district's spring break and whether spring break can or cannot be utilized for a hearing.
• The address of an appropriate hearing room which has been reserved for the dates requested. 
• The dates the district is conducting testing, and whether teachers must be present for that testing or can be in attendance at a hearing instead.
• The availability of your witnesses and clients for all dates from March 29 through April 30, not just the dates you intend to request.
  AND,
• Most importantly, you will need to know the identity and availability of the representative(s) for the teachers receiving notices. 

The California Teachers Association has offered to assist counsel for districts to obtain this information.  Counsel for school districts should inform the CTA legal department of the name of the district and the number of teachers who will likely receive a March 15 notice.  CTA's "RIF coordinators" will process the information from district counsel and assign counsel or another representative to represent the teachers in the RIF proceeding.  The CTA representative will be directed by CTA to contact counsel for the particular school district to discuss dates and other details.

CTA has provided this contact information:

• In Northern California:
  
  • Defined as the entire central valley (CTA Region 2) and the coast north of Paso Robles (CTA Region 1)
  • Call (650) 697-1400 and ask for the Legal Department.  Request to speak with the RIF coordinator for either Region 1 or Region 2
• In Southern California:
  • Defined as the Coast from Paso Robles South and East to the Nevada Border (Except for the central Valley)
  • Call (562) 942-7979 and ask for the legal department.  Any of legal associates will process the information.

Once you have the necessary information, you are ready to request dates, and a form has been developed to guide you through that process.

B.  Requesting Dates in 2004:

To facilitate the hearing request process this year, OAH has developed a "Request to Set" form specific for these hearings.  The form can be accessed on the OAH web site.  The address is /.  On the left hand side of the OAH home page are a series of buttons, one of which is labeled "Teacher Reduction in Force."  Under that topic, OAH will be posting information and updates about the process beginning in February.

You can complete this form on-line, print it, and FAX it to the regional office of OAH with jurisdiction over the district.  The form, a copy of which is attached, asks you to provide as much information as possible because the more information you can provide to OAH, the greater the likelihood you will get the dates you request.  

Please note these specific points about this form:

• One form per district - Each district must be identified, for each desired range of dates, for each location, and for each set of respondents.  A single form cannot be used to set dates for multiple proceedings, or to simply reserve a block of dates.  The form is district-specific, and "block reservations" for a series of dates will not be permitted in 2004.
• Contact Information - You must provide complete contact information for the district superintendent including a fax number.  We need that information both to be assured that OAH directs its bill to the right organization, and to be prepared to fax the proposed decision in the case, if time does not permit mailing.
• Respondent Count - Provide the number of respondents as known as of the day of filing.  OAH realizes the number will probably decrease, but must have the number at the outset to facilitate setting aside the right amount of time for hearing.
• Where - Identify hearing location as specifically as possible, with the town name and zip code being the minimum. 
• Conflict dates - Provide the dates for the district's spring break and standardized testing as well as any known "unacceptable" dates.
  AND
• Most importantly, provide the identity and contact information for the representative of the teacher respondents and indicate whether you have been in contact with that representative to discuss available and unavailable dates.  The form also asks you to indicate the basis for any disagreement as to the dates, and you must explain if you are not serving a copy of the request on opposing counsel.

The form also asks whether you are requesting a pre-hearing conference and for any specific issues you believe should be addressed at the conference, such as discovery needs or special credentialing information.

Following submission, the OAH calendar clerk in each regional office will set dates in consultation with the Presiding Judge.  Once set, the completed form with the Clerk's Acknowledgement will be sent to you, along with the "Order" which will direct you to serve a copy of the acknowledged form on the respondents' representatives no later than five days after receiving it.  There may be additional orders in particular cases included on the form as well.

The form is also available to counsel for teachers, and such requests will be accepted and processed by OAH in coordination with requests from district counsel.

One additional point.  Although not specifically requested on the form, if you are aware of other districts in the same general location that are apt to be requesting hearings, note the names of those districts on a cover sheet to your Faxed form or in a phone call to the calendar clerk.  Adjacent locations will probably be handled by a single judge on sequential dates.

3.  Logistics Before the Hearing Commences:

After you have your hearing dates, but before the hearing commences, OAH needs you to undertake certain tasks that keep the logistics of the hearing on-track: 

• Continuously update the calendar clerks on changes in the number of respondents.  You may do so by phone call, but please do not wait until you have a "firm" number.  As the number decreases, advise OAH. 
• No later than 15 days prior to the hearing we would like to provide us with the following;
  • A sample accusation with attachments
  • The notice of Hearing as you prepared and served it on respondents
  • A disk which contains, in Word format:
    • a list of all respondents - meaning teachers served with accusations - in alphabetical order
    • the FTE reduction chart - or the resolution
• Notify OAH of the exact address of the hearing room if you did not provide it previously.  Attached is a description of standard hearing room requirements. 
• OAH assumes that the school district will retain a qualified court reporter to make the record of the proceedings.  If you need OAH to retain a court reporter, please advise the Presiding Judge at least one week in advance.
• Similarly, if security is necessary at the hearing, OAH assumes the parties will provide it.  OAH's security is provided by the California Highway Patrol.  If you need OAH to provide security, please advise the Presiding Judge at least one week in advance.

4.  Pre-hearing Legal Processes:

A.  Continuance Requests:

If you have the information requested at the outset when you file the Request to Set form, continuance motions should be minimized.  But please be advised that requests for continuance, even when both parties stipulate to the continuance, are likely to be denied, or to result in a re-set hearing in June or July.  Since OAH clears its calendar for six weeks to accommodate the teacher reduction in force hearings, other proceedings are delayed, becoming more urgent and taking priority over other matters from May onward.

If you find that you must ask for a continuance, the motion must comply with
the OAH regulation regarding continuance motions, Title 1, California Code of Regulations Section 1020.  OAH's regulations are also available on the OAH web site at http://www.oah.dgs.ca.gov/. Among other requirements for a motion for continuance, you will be asked to:

• Include all facts supporting the motion;
• Indicate whether other parties or their counsel, including respondents who are not represented by counsel, have been contacted regarding the request, and whether those parties oppose or support the request;
• Propose new hearing dates to which all parties have agreed as well as any dates that any party is unavailable;
• State whether the continuance is likely to result in a decrease in the number of teachers subject to layoff and to what extent; and
• State whether the continuance is likely to result in a decrease in the necessary hearing time, and to what extent;

Serve a copy of your motion on all parties, and file the motion as soon as the reason for the motion is known.

It is more likely that your motion will be given favorable consideration if it is a motion to which all parties stipulate, and if it will mean that the case will settle or the continuance will result in a decrease in time needed for hearing.

B.  Pre-hearing Conferences:

Last year, OAH found that scheduling and holding pre-hearing conferences in larger
layoff cases, of about 300 or more, was effective in expediting the hearings.  OAH plans
to schedule pre-hearing conferences this year as well, and may do so for any hearing,
regardless of the number of respondents expected.

At the pre-hearing conference, you may be asked to discuss: time estimates for
the hearing; the most recently determined number of respondents; possible stipulations
to non-contested or foundational facts; whether security is needed at the hearing;
whether the hearing venue is appropriate; marking and exchanging exhibits; and any
legal issues that are expected to arise.

If OAH does not schedule a pre-hearing conference on its own motion, any party may
file a written request asking OAH to schedule an in-person or telephonic pre-hearing
conference-for any of the purposes mentioned above, or for any reason that a party
believes is likely to result in more efficient use of the hearing time.    Although OAH has
the discretion to deny the request, the request will usually be granted.

C. "Trial" Briefs:

If you believe there are unique or significant legal issues raised by the facts of your case, consider preparing a Trial Brief to be presented to the ALJ at the beginning of the hearing.  The more the ALJ knows about the issues before the hearing begins, the better for the ALJ and for the process.   These briefs should be succinct and focus on the legal issues and expected evidence.  Argument is probably less important than simply identifying the issues and applicable authorities.

Although it may be preferable to have the brief received by the ALJ before the hearing commences, the likelihood of it actually reaching the judge diminishes as the hearing approaches, because that judge is apt to be traveling between hearings, and not checking mail at his or her office.  As a rule of thumb, if you do not have a trial brief prepared and submitted to OAH at least five working days before the hearing, simply provide a copy to the ALJ at the hearing.

Any trial brief must be served on all parties, represented and unrepresented as well.

5.  The Hearing:

A.  The Judge's Opening Remarks:
Most judges will open with a statement regarding the issues in the hearing, and what items are not at issue.  At the meeting, several individuals commented that some judges would remark that the competence of the teachers impacted by the reduction in force was not in issue.  That remark was confusing for some teachers who saw the hearing as focused closely on their professional competence as evidenced by their credentials and amount of experience.  OAH will discuss that point with the Administrative Law Judges. 

In other respects, OAH anticipates most ALJs will commence the proceedings in a manner similar to last year, by explaining that the process arises from budget considerations and as a matter of law the merits of the particular teachers affected is not at issue.

B.  Limits on number of witnesses, evidence generally:
While counsel for respondents will be asked to identify everyone they represent, and other respondents will also be asked to make an appearance on the record, it is probable that not every teacher affected will testify.  To the extent counsel can warn respondents of the possibility of the ALJ limiting cumulative, narrative, or legally irrelevant testimony, the hearings may run more effectively.

C.  Stipulations:
ALJ's will accept stipulations to all non-contested facts.  The goal is to focus on contested issues and streamline or avoid presentations on all others by stipulation.  We will seek stipulations on issues such as the following:

• The layoff notices, requests for hearing, accusations and notices of defense were all timely and properly filed, or if not, any defect is waived.
• Correctness of the seniority list.

D. Evidence Counsel Needs to Bring to the Hearing:

• District counsel:
  • Disk containing updated list of names of all respondents in alpha order and in Word format;
  • Up dated Board resolutions containing "skipping" criteria and rules, and "Tie-breaker" resolution.
  • Up-to-date seniority list and list of those selected for layoff.
• Teachers' counsel: Disk containing list of persons represented, preferably in alpha order and in Word format.
• All counsel:  Please bring one extra copy of any document to be introduced into evidence.  In other words, bring one copy to be introduced in evidence, copies for each representative or unrepresented party, plus one.  The extra copy is for witnesses to review and will be retained by OAH to avoid delays for photocopying if judicial review is sought.

6.  Post Hearing Processes:

OAH mails or Faxes the proposed decision to the district office, because proposed decisions are not "public" until the decision-maker (the Board) adopts the decision as its own.  The district office is charged with serving the proposed decision on respondents pursuant to statute.  The district office staff is also responsible for serving final decisions on the parties.

Hearing exhibits are returned to the school district office by mail when the proposed decision is sent or shortly thereafter.

1.26.2004 1-14 Mtg Summ