December 5, 1997
Mr. L. P. Hornthal, Jr.
Hornthal, Riley, Ellis & Maland, LLP
Post Office Box 220
Elizabeth City, North Carolina 27907-0220
Re: Advisory Opinion; The Excellent Schools Act; S.L. 1997-221 (S.B. 272); Scope of School Board Hearing under Excellent Schools Act; G.S. § 115C-325(j2)(3)
Dear Mr. Hornthal:
On behalf of the Elizabeth City/Pasquotank Schools, you have written to ask:
During the course of the dismissal of a career employee, what is the evidentiary scope of the hearing before the school board when the career employee has not requested a hearing by a case manager?
The Excellent Schools Act, S.L. 1997-221 (S.B. 272), amended G.S. § 115C-325 to change the hearing procedures applicable to the dismissal or demotion of career employees. In lieu of the Professional Review Committees, the Act authorizes case managers to hear a career employee’s appeal, conduct a full evidentiary hearing, make findings of fact, and assess whether a superintendent’s recommendation is based on a preponderance of the evidence. The Excellent Schools Act also amended G.S. § 115C-325 to provide a procedure whereby career employees can forego their right to a full evidentiary hearing before the case manager and proceed directly to a hearing before the school board. This procedure is codified in G.S. § 115C-325(j2)(3) which provides:
(3) If the career employee did not request a hearing by a case manager, the board shall receive the following:
- a.Any documentary evidence the superintendent intends to use to support the recommendation. The superintendent shall provide the documentary evidence to the career employee seven days before the hearing. .
- b.Any documentary evidence the career employee intends to use to rebut the superintendent’s recommendation. The career employee shall provide the superintendent with the documentary evidence three days before the hearing.
- c.The superintendent’s recommendation and the grounds for the recommendation.
It appears that the General Assembly created this direct appeal to the school board to address those cases where the facts underlying the superintendent’s recommendation are not in dispute and the employee desires to bypass a full evidentiary hearing before the case manager in favor of a hearing before the board on a record limited to documentary submissions, in other words, a "trial on paper." The statute, however, does not define or otherwise describe the phrase "documentary evidence." You have asked what evidence may be presented to the board under the rubric of "documentary evidence."
When interpreting statutes, the words in the statute are to be given their ordinary meaning unless
the General Assembly has specifically defined them or they have an acquired technical meaning. Food Town Stores v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980). The phrase "documentary evidence" has no technical meaning. Therefore, it is our opinion that in the context of G.S. § 115C-325(j2)(3), "documentary evidence" includes not only any documents in existence at the time of the superintendent’s decision but also any documents the parties might prepare specifically for the hearing before the board, such as affidavits.
Absent any limitation on the "documentary evidence" that the parties may submit to the board and any statutory right to rebuttal, it is possible that the employee’s submissions could raise issues not addressed in the superintendent’s submissions. If presented with "documentary evidence" which is inadequate to reach a fair decision on the employee’s appeal, it is our opinion that the board has the discretion to take additional evidence. While G.S. § 115C-325(j2)(3) states that the board shall receive documentary evidence, this section does not prohibit the board from considering other evidence. Under G.S. § 115C-45, "Judicial functions of board," local school boards have the express power to subpoena witnesses in hearings held before the board. Therefore, if an employee chooses to bypass the case manager and request a hearing before the board under G.S. § 115C-325(j2)(3), the board has the authority to call witnesses and consider their testimony along with the documentary evidence submitted by the parties. Furthermore, it is our opinion that this authority is not limited to the circumstances described in G.S. § 115C325(j2)(6), which permits the board to hear "new evidence" when it could not have been discovered and produced earlier, because that statute is expressly limited to cases on appeal to the board after a case manager hearing.
While it is our opinion that the board has the authority to subpoena and receive additional evidence under G.S. § 115C-325(j2)(3), it is also our opinion that the statute does not grant the superintendent or the employee the right to call witnesses in hearings before the board. Therefore, employees should be aware that if they choose to bypass the case manager hearing, they waive their right to present evidence other than documentary evidence unless they can convince the board to exercise its power to subpoena witnesses. The superintendent’s ability to present additional evidence is similarly limited.
The law also provides that the superintendent and the career employee may submit written statements to the board. G.S. § 115C-325(j2)(4). In our opinion, the General Assembly intended these statements be briefs based on the evidentiary record. Furthermore, the superintendent and the career employee also have the right to appear and make oral arguments to the board based on the record. G.S. § 115C-325(j2)(5).
In summary, it is our opinion that the record before the board in a hearing pursuant to G.S. § 115C-325(j2)(3) must include the superintendent’s recommendation and grounds for the recommendation as defined in G.S. § 115C-325(h)(2), documentary evidence submitted by the superintendent and the employee, the parties’ briefs on the law and evidence in the record, and oral arguments. In addition, the board has the discretion under G.S. § 115C-45 to subpoena additional evidence or testimony that might aid in its decision.
Edwin M. Speas, Jr. Senior Deputy Attorney General
Thomas J. Ziko Special Deputy Attorney General
R. Bruce Thompson II Assistant Attorney General