Section 342.905 - Appeal procedure; arbitration as alternative(1) If the district school board dismisses the teacher or does not extend the contract of the contract teacher, the teacher or the teacher's representative may appeal that decision to the Fair Dismissal Appeals Board established under ORS 342.930 by depositing by certified mail addressed to the Superintendent of Public Instruction and a copy to the superintendent of the school district: (a) In the case of dismissal, within 10 days, as provided in ORS 174.120, after receipt of notice of the district school board's decision, notice of appeal with a brief statement giving the reasons for the appeal.(b) In the case of a contract nonextension, within 15 days, as provided in ORS 174.120, after receipt of the written notice of nonextension of a contract, notice of appeal with a brief statement giving the reasons for the appeal.(2)(a) As soon as practicable after the time the notice of appeal is received by the Superintendent of Public Instruction, the superintendent shall appoint a panel of three members from the Fair Dismissal Appeals Board for the purpose of conducting a hearing. Insofar as practicable, the panel shall be selected from those members of the board serving in positions where the average daily membership as determined in ORS 342.930 most nearly coincides with that of the involved district. The panel shall consist of: (A) One member from the category representing district school board members;(B) One member from the category not affiliated with common or union high school districts; and(C) One member from the category representing teachers or administrators, as follows: (i) If the appeal is from a contract teacher in a teaching position, the panel shall include the teacher member of the board.(ii) If the contract teacher is in an administrative position, an administrative member shall sit in place of the teacher member.(b) The panel may not contain a member who is a resident of the district that is bringing the dismissal or nonextension.(c) The Department of Education, at the department's expense, shall provide to the panel appropriate professional and other special assistance reasonably required to conduct a hearing. The panel shall be empowered, on behalf of the contract teacher, the district superintendent and the district school board, to subpoena and swear witnesses and to require witnesses to give testimony and produce relevant evidence at or prior to the hearing.(d) The executive secretary of the board may issue subpoenas on behalf of a panel. A person subpoenaed under this subsection may move to quash or modify the subpoena if it is oppressive or unreasonable. The motion must be made before the time specified in the subpoena for appearance or production of materials. The motion may be made to the executive secretary or the panel.(e) In a case pending before a panel that involves a teacher's performance at an Oregon Youth Authority facility, the panel assigned to the case may submit to the Director of the Oregon Youth Authority written questions that the panel unanimously agrees are relevant to the case. The director shall respond to the panel's questions in writing within 20 days of the director's receipt of the questions from the panel. If a question by the panel seeks information that is not confidential or privileged under Oregon or federal law, the director shall provide the information requested by the panel. If a question by the panel seeks information that is confidential or privileged under Oregon or federal law, the director, in responding to the question, may not disclose the confidential or privileged information but shall instead explain that the information being sought is confidential or privileged. The procedure outlined in this paragraph is not in lieu of any other mechanism that may be available to the panel or parties for obtaining or presenting evidence.(3) The Attorney General shall assign an assistant, at no cost to either involved party, to advise the Fair Dismissal Appeals Board, to be present at any hearing held by a panel, and to perform those tasks at the request of the board that would normally require legal training.(4) Within 10 days after receipt of the notice of an appeal of contract nonextension, the district shall serve upon the Fair Dismissal Appeals Board and the teacher a written statement of reason for the contract nonextension, which shall include: (a) A plain and concise statement of the facts relied on to support the statutory grounds for nonextension of the contract;(b) The statutory grounds upon which the district believes such contract nonextension is justified; and(c) A list of witnesses and documents upon which the district will rely at hearing.(5)(a) At least 10 days prior to the hearing, the teacher shall provide a list of witnesses and exhibits to the Fair Dismissal Appeals Board panel and the school district.(b) The Fair Dismissal Appeals Board panel shall hold a contested case hearing under ORS chapter 183 within 100 days of the receipt by the teacher of notice of dismissal or of the statement of reasons in the case of contract nonextension. No later than 140 days after the filing of an appeal, consistent with due process, the Fair Dismissal Appeals Board panel shall prepare and send a written decision to the contract teacher, the district superintendent, the district school board and the Superintendent of Public Instruction. The hearing shall be private unless the teacher requests a public hearing. At the hearing, the district and the contract teacher shall have the right to be present and be heard, to be represented by counsel, to present evidence and cross-examine adverse witnesses and to offer evidence that in the panel's judgment is relevant to the dispute. The panel may take all reasonable steps to require the parties to conclude the hearing in an expeditious manner.(6) When the Fair Dismissal Appeals Board panel has completed its hearing, it shall prepare a written decision and send it to the contract teacher, the district superintendent, the district school board and the Superintendent of Public Instruction. The Fair Dismissal Appeals Board panel shall determine whether the facts relied upon to support the statutory grounds cited for dismissal or nonextension are true and substantiated. If the panel finds these facts true and substantiated, it shall then consider whether such facts, in light of all the circumstances and additional facts developed at the hearing that are relevant to the statutory standards in ORS 342.865(1), are adequate to justify the statutory grounds cited. In making such determination, the panel shall consider all reasonable written rules, policies and standards of performance adopted by the school district board unless it finds that such rules, policies and standards have been so inconsistently applied as to amount to arbitrariness. The panel shall not reverse the dismissal or nonextension if it finds the facts relied upon are true and substantiated unless it determines, in light of all the evidence and for reasons stated with specificity in its findings and order, that the dismissal or nonextension was unreasonable, arbitrary or clearly an excessive remedy.(7)(a) Subject to subsection (6) of this section and paragraph (b) of this subsection, if the Fair Dismissal Appeals Board panel finds that the facts relied on to support the recommendation of the district superintendent are untrue or unsubstantiated, or if true and substantiated, are not adequate to justify the statutory grounds cited as reason for the dismissal or nonextension, and so notifies the contract teacher, the district superintendent, the district school board and the Superintendent of Public Instruction, the teacher shall be reinstated and the teacher shall receive such back pay as ordered by the Fair Dismissal Appeals Board panel for the period between the effective date of the dismissal or nonextension and the date of the order reinstating the teacher, or the date when the district actually reinstates the teacher, whichever is later. However, nothing in this section requires a school district to pay the teacher until the reinstatement occurs if the district has other legal grounds for not reinstating the teacher.(b) So long as the right of the district board under subsection (9) of this section and under ORS 183.480 and 183.500 to judicial review of the action of the Fair Dismissal Appeals Board remains unexpired, the district school board may withhold the reinstated teacher from performance of teaching duties, unless otherwise ordered by the court having jurisdiction of the appeal.(c) Subject to ORS 342.850(9), if the Fair Dismissal Appeals Board panel determines that the procedures described in ORS 342.850(2)(b)(A) to (D) have not been substantially complied with, the teacher may be reinstated with back pay as provided in paragraph (a) of this subsection.(8) Subject to subsection (6) of this section, if the Fair Dismissal Appeals Board panel finds the facts relied on to support the recommendation of the district superintendent true and substantiated, and that those facts justify the statutory grounds cited as reason for the dismissal or nonextension and so notifies the contract teacher, the district superintendent, the district school board and the Superintendent of Public Instruction in writing, the dismissal or nonextension becomes final on the date of the notice.(9) An appeal from action of the Fair Dismissal Appeals Board panel shall be taken in the manner provided in ORS 183.480.(10)(a) If both the district board and the teacher or teacher's representative agree, arbitration may be used as an alternative to a hearing before a Fair Dismissal Appeals Board panel to determine if the teacher's dismissal or nonextension of a contract is in compliance with the standards of ORS 342.805 to 342.910. If the teacher or teacher's representative desires to use the arbitration procedure, the request for arbitration shall be included in the request for appeal that is filed with the Superintendent of Public Instruction under this section. Within 10 days of the time the superintendent of the district is notified of the teacher's intent to appeal the dismissal or nonextension of a contract, the superintendent of the district shall notify the teacher or teacher's representative and the Superintendent of Public Instruction as to whether the district has agreed to use the arbitration procedure. If the district determines not to use the arbitration procedure, the hearing procedure shall be continued under this section in the same manner as if no request for arbitration had been made. If the arbitration procedure is used, the teacher has no further rights to a hearing before a Fair Dismissal Appeals Board panel.(b) The procedures for selection of the arbitrator are those in the applicable collective bargaining agreement. If there is no provision or agreement or if the agreement does not contain a procedure for selection, the parties shall request a list of five arbitrators from the Employment Relations Board and shall choose an arbitrator by alternative striking of names until one name is left. The remaining person shall act as the arbitrator. The Employment Relations Board shall compile a roster of qualified arbitrators from which the lists are to be taken.(c) In determining whether the district board's dismissal or nonextension of the teacher should be sustained, the arbitrator shall use the same reasons, rules and levels of evidence as are required for the Fair Dismissal Appeals Board under ORS 342.805 to 342.910. 1965 c.608 §12; 1971 c.570 §8; 1973 c.298 §6; 1973 c.612 §14; 1977 c.223 §1; 1977 c.400 §5; 1977 c.881 §6; 1979 c.668 §4; 1987 c.663 §2; 1993 c.236 §1; 1993 c.237 §1; 1993 c.778 §28; 1997 c.864 §13; 2001 c.449 §1; 2003 c. 798, § 4