The setting resembles a courtroom – only instead of a judge and jury, there's a hearing officer and it's up to a three-member panel to decide whether teachers who were fired from public school districts in Kentucky can get their jobs back.
This “tribunal”will be the venue former Louisville Male High School principal David Mike will use in an attempt to reverse Jefferson County Public Schools Superintendent Donna Hargens' decision to fire him last month.
And if history is any guide, the odds are in Mike's favor.
More than 70 percent of the terminations that went to tribunals in Kentucky from 2005 through 2010 were partially or completely reversed, according to data requested by and shared with the state's Interim Joint Committee on Education in November 2011.
“We have looked at this data since 1992 and the numbers have essentially stayed the same,” said Wayne Young, executive director of the Kentucky Association of School Administrators, who compiled the report at the request of lawmakers. “Very few cases actually make it to a (tribunal) hearing and when they do, the majority result in a modification or reversal of the termination.”
Under state law, any certified public school employee who is terminated, suspended without pay or publicly reprimanded has the right to appeal the superintendent's decision to a tribunal. The panel consists of an active or retired teacher, an administrator and a lay person -- none of whom reside in the county involved in the dispute.
A WDRB News analysis of 103 tribunal cases (including those involving suspension without pay and public reprimand) from 2011 through Nov. 26, 2014, shows that about half of the cases – 52– were settled before the hearing took place.
Of the 51 remaining cases, 12 were partially or completely reversed, 8 were withdrawn by the teacher and 19 are still pending. Only in 12 instances was the superintendent's decision completely upheld by the tribunal.
“We are hoping to have justice for David Mike by Christmas – that is why we requested this process,” said William Walsh, the attorney representing Mike, told WDRB News on Wednesday. “We want to clear up any misunderstandings and give David an opportunity to vindicate himself.”
The hearing will take place at 9 a.m. on Dec. 9 at the Jefferson County Board of Education. Dec. 10 and 12 are also reserved for the case if the extra time is needed. The proceedings will be conducted in public at Mike's request.
"I have nothing to hide," Mike has told WDRB News. "I want the public to know the truth."
During a tribunal hearing, both sides subpoena witnesses to testify and who are subject to cross-examination by the other side. Each side also introduces exhibits to prove their case.
The tribunal panel then has five days to render a decision with a majority vote. The decision is binding and may be appealed to circuit court by either party.
Susan Durant of the Kentucky Attorney General's office will serve as the hearing officer in Mike's case. The Kentucky Department of Education is still in the process of determining who will serve on the tribunal, said KDE spokeswoman Nancy Rodriguez, said Wednesday.
Debate over tribunals
The tribunal data shared with the Interim Joint Committee on Education meeting in November 2011 was compiled by the Kentucky Association of School Administrators, the Kentucky School Boards Association and the Kentucky Association of School Superintendents.
Lawmakers requested the report because the tribunal process had been the subject of debate and proposed reform for more than a decade, said former Sen. Ken Winters, R- Murray, who was co-chair of the committee at the time.
“There had been a lot of discussion about tribunals, and we felt we needed a better understanding of the system,” Winters said on Wednesday. He retired from the Senate in 2012.
Wayne Young, executive director of KASA, told lawmakers during the 2011 meeting that tribunals “produce erratic and inconsistent results.”
Young – whose group represents superintendents and school administrators – told WDRB News Wednesday that the system is “flawed and needs to be changed.”
“The tribunals tend to try to craft a solution they think will make everyone happy or at least give everyone something,” Young said.
Stephanie Winkler, president of the Kentucky Education Association, which is the statewide teachers union, said her organization supports the tribunal process “as it stands.”
Winkler said once teachers obtain tenure – which takes four years – the tribunal process protects them from arbitrary decisions by superintendents.
“Kentucky has one of the longest probationary periods for new teachers , and we feel that is an adequate amount of time for administrators to decide whether or not a teacher should be in the classroom,” Winkler said.
Young noted that the majority of tribunal cases stem from alleged misconduct – such as dishonesty, sexual misconduct, drug and alcohol issues, theft, or violation of laws or regulations -- rather than how well a teacher performs his or her job .
“I don't think the people on these tribunals have the background needed to sit in judgment of a decision made by a superintendent in some of these very complex settings,” Young said.
Young added that the tribunal process may discourage superintendents from firing employees who deserve to be dismissed, because their decision can be overruled.
“You are taking a chance when you go to a tribunal,” he said. “You can have iron clad proof of wrongdoing, and the tribunal can say they don't think it is bad enough and they can put the teacher back in the classroom. It's within their right to do that.”
Winkler said the hearing officer and the tribunal members all receive training from the state.
“This issue is why due process is so important,” she said. “If you can prove someone is an ineffective educator, that's one thing. But you can't just fire someone because you have a conflict with their personality.”
Bullitt County Schools Superintendent Keith Davis told WDRB News on Wednesday that changes to the tribunal process are needed because the “decisions they make can be detrimental to the school system and the children we serve.”
"Terminating an employee is never an easy decision," he said. "But we need to have some standard of conduct, and not a system that says that someone is going to have a job for life regardless of their behavior."
Davis said the tribunals don't have to explain their reasoning for overturning personnel actions.
"Sometimes they may not have a reason, other than they just feel sorry for the teacher," he said.
In 2010, Bullitt County Schools teacher Dale Beasley was fired by Davis following an incident in which Beasley allegedly grabbed a female fifth-grade student and pulled her to the front of the classroom because she didn't have a pencil.
Beasley had also been the subject of other previous incidents and disciplinary actions, according to his termination letter.
But the tribunal that reviewed the case gave Beasley his job back and directed Bullitt County Schools to pay for a “teaching professional” who was to supervise Beasley upon returning to the classroom and make recommendations as to how Beasley could better manage his anger and be more respectful and sensitive toward his students, according to the report.
The district appealed the tribunal decision to Bullitt Circuit Court, which affirmed the tribunal's decision.
"These decisions have a chilling effect," Davis said. "You have a situation where clearly someone doesn't need to be in a classroom and you try to do something about it and it gets overturned."
In turn, Davis said parents "question why that person is still in the classroom."
"They don't understand the process, all they see is that the person is still employed and they think that we didn't do anything about it," he said. "It's frustrating."
Mike fired for 'conduct unbecoming of a teacher'
In Kentucky, a teacher becomes tenured after they have completed four full years in the same district and are re-employed for the fifth year.
Under state law, the contract of a teacher can only be terminated for four reasons – insubordination, immoral character or conduct unbecoming a teacher, physical or mental disability and inefficiency, or incompetency or neglect of duty (when a written statement identifying the problems or difficulties has been furnished to the teacher or teachers involved).
Hargens fired Mike on Oct. 28 for "conduct unbecoming of a teacher." He received his termination letter nearly a year after testing improprieties were first alleged at Male High School.
Hargens' letter said Mike did not create a proper testing environment and that he told a teacher to destroy documents.
"Having considered the seriousness of your conduct outlined in this letter and your prior record and length of service, I have concluded that termination of your employment contract is warranted," Hargens wrote.
The district's investigation took place following a separate investigation by the Kentucky Department of Education, which found that several violations occurred at Male High as a result of Mike and two other staffers' failure to "ensure the security" of ACT Compass exams given during the fall of 2013.
The two other Male High staffers involved in the testing scandal, guidance counselor Rhonda Branch and former teacher Debbie Greenberg, are also under investigation by the district.
Greenberg retired from JCPS on July 1, while Branch remains employed but has been reassigned to central office duty pending the outcome of the district's separate investigation.
As of Wednesday, there has been no determination of final action in Branch's investigation, therefore, a copy of the investigative report requested by WDRB News under the state's open records law, is still preliminary, said JCPS spokesman Ben Jackey.
Mike, Greenberg and Branch still face a proceeding before the Kentucky Educational Standards Board as a result of the Kentucky Department of Education's investigation.
The board, which controls teacher certifications, acts mostly in secret when handling disciplinary cases, so it's hard to determine where exactly the cases against the three educators stand.
Mike made $141,000 annually as principal of Male High School.