CCSD Found Out Of Compliance

By VERNON ROBISON

The Progress

The Clark County School District was found to be out of compliance with state law and the Nevada Administrative Code in a dispute resolution process involving a local school which concluded on June 20. The actual hearing was held on June 9 in a dispute between the Mack Lyon Middle School Organizational Team (SOT) and the Clark County School District (CCSD).

In a letter dated July 5, addressed to CCSD Board of Trustees President Irene Cepeda, NDOE Superintendent Jhone Ebert summarized the findings of the hearing. Ebert states that CCSD policies and regulations “do not address disputes between SOTs and the district” as required by law. The letter then officially notified CCSD of its non-compliance on this issue and “additionally orders CCSD’s Board of Trustees to provide a plan of corrective action in compliance with (state law and administrative code) not later than 30 days of the date of this letter.”

The complaint
In January, the SOT filed an appeal to the Nevada Department of Education (NDOE) claiming that Mack Lyon principal Ken Paul had been specifically targeted and retaliated against by CCSD central administrators.

In the hearing, the SOT alleged that retaliation came because of testimony that Paul had made several times before the State Board of Education during the summer and fall of 2021. Paul had been vocal in those testimonies regarding his observation of the failings of the CCSD in its compliance with a 2015 Nevada state law that reorganized the district to bring more autonomy and funding to local school precincts.

Paul was the only Moapa Valley school administrator, and one of very few in the CCSD, to be so openly critical of the district in this way.

SOT attorney Terry Holzer, a Moapa Valley resident, argued in the hearing that the retaliation took the form of an aggressive and prolonged mask-wearing investigation at Lyon Middle School which took place immediately after Paul had made the critical testimony before the state board. According to hearing documents, the CCSD investigation ended on October 15, 2021 with an investigatory conference conducted by Paul’s immediate CCSD supervisor Lindsey Tomlinson. Paul was given a disciplinary “oral warning.”

In addition, the SOT’s appeal claimed that the CCSD had not established a clear dispute resolution process, as required by state law, for issues relating to retaliation for performance of duties by a SOT member.

In December, 2021, the SOT had appealed directly to CCSD on the matter, requesting an investigation be convened by the district. But the district had declined such a hearing, responding that the matter dealing with Paul was a confidential personnel matter governed only by collective bargaining agreement and not related to his duties in the SOT.

This response is what prompted the SOT to make the January appeal to Ebert requesting that she investigate the District’s failure to comply with its obligations under state code as well as look into the retaliation claim against Paul.

Ebert had responded by granting the request and funding an independent hearing led by two hearing officers, both retired federal magistrates, to come to a finding on the complaint.

Finding of non-compliance
The decision that CCSD was out of compliance was made by the hearing officers in the first few minutes of the hearing, according to Holzer.
“The (hearing officers) basically did my job for me.” Holzer said. “They basically interrogated the school district attorney to determine whether the district had this dispute resolution process in place.”

“They just nailed her on it!” Holzer added. “Within the first five minutes of the hearing it was clearly established that the school district does not have this process established. Their attorney tried to hedge around it, but it finally came down to a yes or no question and she had to admit that ‘No, we do not have that in place.’ So there is a clear violation of noncompliance; another blatant disregard of the law by CCSD.”

No finding of retaliation
But in the matter of the retaliation claim things were less clear. After hearing the arguments from both sides, the hearing officers could not find in favor of the SOT that Paul was the subject of retaliation by the district.

The decision stated that in order to prove a retaliation claim, the “Plaintiff must show that he was subjected to these adverse employment actions because of his participation in protected activity (in this case testifying before the NDOE), and that the adverse employment action would not have occurred but for his protected activity.”

The decision pointed out that Tomlinson had testified that she did not become Paul’s supervisor until July 2021, after his testimony. Furthermore, she was not aware of his testimony before the NDOE board. Thus there was no proof of retaliation, the hearing officers said.

Holzer acknowledged that a finding of retaliation is very difficult to prove, especially in this limited forum. “We knew that that one was going to be hard to win,” she said. “Even though there is no doubt in our minds that Ken was retaliated against.”

Still a win
Even so, Holzer insisted that the finding of CCSD’s non-compliance was the bigger win that the SOT was after to begin with.
“This was a case of first impression,” Holzer said. “No one has ever done this before. No one has ever done what the Lyon SOT has done, to write to the State Superintendent for compliance. And the state actually granted it and funded a hearing. That is huge! Now someone has done it and now Superintendent Ebert is ordering the CCSD trustees to comply. And they will have to do it.”

Ken Paul, who retired from the CCSD last month, agreed. He admitted to being disappointed that the retaliation portion of the hearing was thrown out on what he believed was a technicality. But the decision of noncompliance will have repercussions throughout the district, he said.

“This has opened the door for new regulations where this dispute resolution will not just cover retaliation against SOT members, but it will cover any time when SOTs and central administrators come to an impasse on what they believe should happen under the reorg law,” Paul said. “The district has to have a process in place for that. And if the district doesn’t follow the regulations, the SOT can appeal it to Jhone Ebert and she will decide whether it warrants a hearing, just like in our case. The big difference will be that the CCSD will pay for it, not the state. So that puts the SOTs on a more level playing field. That is certainly a win.”

Lyon Middle School SOT Chairwoman Syrissa Jolley also saw the decision as a win. She believes that it could open the door to breaking down a “culture of fear” that is prevalent among CCSD employees.

“We sent a message of what can be done when the SOT and the community gets behind the principals and administrators,” Jolley said. “Ken was willing to put his neck out on the line to show, especially in our community, that we have our administors’ backs. If the district is going to retaliate against our administrators we will lose our minds and do all we can to stop that.”

Jolley added that she believes this ‘culture of fear’ would disappear if CCSD would simply comply with the reorganization law.
“I feel like the reason for this culture of fear is because CCSD central doesn’t want to implement the law and give up autonomy to the local schools,” she said. “They don’t want to implement the law and so they have to impose this culture of fear to hush everyone up. This was huge in moving towards knocking that down.”