Planning for Teacher Reduction in Force Proceedings
Each year, the Office of Administrative Hearings (OAH) conducts teacher reduction in force proceedings for school districts during a six-week period beginning in late March. OAH anticipates a large number of reduction in force proceedings this year, and has developed these procedures to make the process more efficient and easier for all parties
- Pre-Calendaring Considerations
A. School District Contracts with OAH
B. How OAH Calendars Hearings
- Requesting Hearing Dates
- Logistics before the Hearing Commences
- Email Filing with OAH
- Pre-hearing Legal Processes
A. Continuance Requests
B. Pre-hearing Conferences
C. Filing "Trial" Briefs
D. Evidence Counsel Needs to Bring to the Hearing
- The Hearing
A. The Judge's Opening Remarks
B. Limits on the Number of Witnesses & Evidence—Generally
D. Evidence Counsel Needs to Bring to the Hearing
E. Visual Presentation Aids at Hearings
- Post Hearing Processes
A. Transmitting the Proposed Decision
1. Pre-Calendaring Considerations
A . School District Contracts with OAH
Before requesting a hearing, a school district must confirm that it has a current contract with OAH. OAH may defer scheduling a school district's hearing until a contract is in effect. A list of school districts that have current contracts with OAH is available on the OAH website. The form contract and explanatory cover letter (new window) are also included on the website. School districts can download the form contract, complete it, and mail the signed contract to the OAH Sacramento office, Attention: Kay Stubbings, Executive Assistant. If you need further information or have additional questions, please contact Kay Stubbings at Kay.Stubbings@dgs.ca.gov (new window) or (916) 263-0512.
B . How OAH Calendars Hearings
OAH has always made an effort to calendar hearings on dates when the requesting party, or better yet, both parties, want the hearing. In previous years, 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.
To avoid the past confusion with the calendar and to permit administrative law judges sufficient time to prepare their proposed decisions, OAH has reserved its calendar from April 2 to April 27 for layoff hearings. Hearings will not be scheduled after April 27 so that one week is reserved to complete all decisions. When requesting to set hearing dates, counsel will need to know these calendar parameters, as well the following information:
- The number of teachers being noticed and a realistic estimate of the number of hearing dates needed. For example, two days may be 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 requested hearing dates. 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 witnesses and clients for all dates from April 2 through April 27, not just the dates you intend to request.
- Most importantly, you will need to know the identity and availability of the attorney(s) or representative(s) for the teachers receiving notices.
2 . Requesting Hearing Dates
To facilitate the hearing request process, OAH has developed a "Request to Set" form OAH-22 (PDF, new window) for these hearings. The form is available on the OAH web site. Complete the request to set form on-line, print it, and file it by fax or e-mail with the appropriate OAH regional office. The appropriate OAH regional office is the office that covers the county in which the school district is located, as shown on the attached list. School districts should complete the form by including all requested information. Submitting an incomplete request to set form may result in a delay in setting your case for hearing. Please note these specific points about the request to set form:
- One form per district: One Request to Set form must be completed for each school distinct layoff hearing. Request to Set forms that seek to schedule hearings for more than one school district will be rejected by OAH.
- Contact Information: Provide complete contact information for the district superintendent including a fax number. This information is essential in order to transmit the proposed decision to the proper person.
- Respondent count: Provide the number of respondents as known on 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.
- Hearing location: Identify the hearing location as specifically as possible, including, street address, room number, city name, and zip code. For considerations in selecting a hearing room, see Hearing Room Considerations.
- Conflict dates: Provide the dates for the district's spring break and standardized testing as well as any known "unacceptable" dates. Although OAH makes an effort to schedule hearings on the dates the parties request, given the significant number of teacher layoff hearings scheduled in a short time frame, OAH cannot guarantee that parties will receive their requested dates.
- Most importantly, provide the identity and contact information for the teachers' attorney/representative and indicate whether the district's attorney has been in contact with the teachers' attorney/representative to discuss available and unavailable dates. Please indicate the basis for any disagreement as to acceptable hearing dates. A copy of the completed request to set form should be served on the teachers' attorney/representative.
- Request for pre-hearing conference: 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. A pre-hearing conference will generally be scheduled for any hearings that are four days or longer, or involve 100 or more respondents.
After the completed request to set form is filed, the OAH calendar clerk in the regional office in which the case is filed will set hearing dates. Once set, the school district will be notified of the hearing dates with instructions to send the formal notice of hearing promptly to all teachers who requested a hearing.
If you are aware of other districts in the same general location that are likely to be requesting hearings, note the names of those districts on a cover sheet to your request to set form or in a phone call to the calendar clerk. Hearings at adjacent locations will probably be handled by one judge on the same or sequential dates.
3 . Logistics before the Hearing Commences
After OAH has scheduled hearing dates, but before the hearing commences, notify OAH of the following changes:
- 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 10 days before the hearing, the school district is asked to provide OAH with the following;
- A sample accusation with attachments;
- A copy of the notice of hearing the school has served on its teacher respondents;
- A DVD or flash drive, in Word format, of:
- a list of all respondents - meaning teachers served with accusations - in alphabetical order; and
- the FTE reduction chart and governing board resolution(s).
- Notify OAH of the exact address of the hearing room if you did not provide it previously.
- Choose an appropriate hearing room based on the considerations included on the attached Hearing Room Considerations.
- The school district shall retain a qualified court reporter to make a record of the proceedings....
- All school districts shall provide security at the proceedings in order to maintain the orderly conduct of the proceedings and ensure the safety and security of all that are attending the proceedings. Questions about security should be addressed to the OAH office assigned to the case.
4 . E-mail Filing with OAH
Parties may use the general e-mail box for the appropriate OAH regional office to file documents, including requests to set, the accusation and attachments, notices of hearing, a list of respondents (teachers) served with the accusation, the FTE reduction chart, governing board resolutions and tie breaker criteria, and post-hearing briefs. If e-mail is used for filing with OAH, parties are asked to note the following specific points:
- Send the e-mail to the OAH regional office that is handling the case as shown on the attached list of regional office coverage area by county.
- The e-mailed documents must be accompanied by a proof of service showing they have been served on all parties or their attorneys/representatives.
- The e-mail's subject line should include the name of the school district and the OAH number (if available). After the hearing has been completed, if filing post-hearing documents for the hearing judge, the judge's name, as well as the school district name and OAH number, should be included in the subject line of the e-mail.
- The text of the e-mail should be limited to a description of documents attached to the email.
5 . Pre-hearing Legal Processes
A . Continuance Requests
If the request to set form includes all requested information, the necessity of filing continuance motions should be minimized. Requests for continuance, even when both parties stipulate to the continuance, may be denied or may result in a hearing date that must be re-set in June or July. Since OAH clears its calendar for six weeks to accommodate teacher reduction in force hearings, other administrative proceedings are delayed, becoming more urgent and taking priority over the reduction in force hearings after May 7th.
If a party must ask for a continuance, the motion must comply with
the OAH regulation regarding continuance motions in California Code of Regulations, title 1, section 1020. OAH's regulations are also available on OAH GJ Resources. 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 the time needed for hearing.
Pursuant to Education Code section 44949, subdivision (e), if a continuance is granted, the time deadline for submitting the proposed decision to the Governing Board and respondents is extended accordingly.
B . Pre-hearing Conferences
In the past, OAH found that scheduling and holding pre-hearing conferences in larger layoff cases, of about 100 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 anticipated number of respondents.
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 uncontested 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.
In light of the anticipated number of reduction in force hearings, the attorneys or representatives may be involved in a large number of hearings that make it difficult for them to be readily available for in-person pre-hearing conferences. OAH is willing to schedule telephonic pre-hearing conferences. OAH will cooperate with the attorneys in attempting to schedule in-person or telephonic pre-hearing conferences at any time before the hearing.
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 hearing time. Although OAH has the discretion to deny the request, the request will usually be granted. When requesting a pre-hearing conference, the requesting party should submit several mutually agreeable pre-hearing conference dates and times after conferring with the other parties in the case regarding their availability.
C . Filing "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 administrative law judge (ALJ) prior to the hearing. The more the ALJ knows about the issues before the hearing begins the better for the ALJ and 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 is preferable to have the ALJ receive the brief before the hearing commences, the likelihood of it actually reaching the judge diminishes as the hearing approaches, because the judge may be out of the office traveling to other hearings. As a result, you should file the brief with OAH before the hearing, but please bring a copy to the hearing for the ALJ.
Any trial brief must be served on all parties, represented and self-represented as well.
D. Notifying OAH of Settlements/Resolutions before Hearing
The school district must notify OAH in writing of any settlement or resolution that dispenses with the need for the hearing. A copy of the written notice must be served on all other parties. The written notice of settlement or resolution must confirm that all steps necessary to resolving the case have been taken, e.g., parties have withdrawn their request for hearing or the school district has withdrawn its March 15th notice. (See California Code of Regulations, title 1, sections 1014, subdivision (d) and 1028, subdivision (j)).
6 . 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. As the proceedings commence, OAH anticipates that most ALJs will explain that the process arises from budget considerations, and as a matter of law, the merits of the particular teachers affected are not at issue.
B . Limits on the 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 that the ALJ will limit cumulative, narrative, or legally irrelevant testimony, the hearings will proceed more efficiently.
C . Stipulations
ALJs will accept, and encourage, stipulations to all non-contested facts. Stipulations should be written to the extent possible. The goal is to focus on contested issues and streamline or avoid presentations on all others by stipulation. ALJs 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:
- DVD or flash drive containing updated list of names of all respondents in alpha order and in Word format;
- Updated Governing 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: DVD or flash drive containing list of persons represented, preferably in alpha order and in Word format.
- All counsel: Please bring one copy of every document to be introduced in evidence, copies for each representative and self-represented party, plus one copy for the witnesses. In hearings involving 100 or more respondents, it is often helpful to have multiple copies of exhibit binders available at the back of the hearing room for respondents to review.
E. Visual Presentation Aids at Hearing
In larger cases, OAH ALJs have found it helpful for the parties to use projectors to display the hearing documents. OAH encourages the use of these aids at hearings. District counsel shall ensure the appropriate equipment and personnel are in place to allow the visual presentation aids to run smoothly and not interfere with the orderly conduct of the hearing.
7 . Post Hearing Processes
A . Transmitting the Proposed Decision
OAH may mail, overnight,, fax or email 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, OAH does not serve the parties with the proposed decision. The district office is responsible for serving the proposed decision on respondents pursuant to statute. The school district's 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.