*1 (643 1125) P.2d 53,298 No. County #273, Appellant,
Ross v. Mitchell U.S.D. Crane, Appellee. Opinion filed
April 15, 1982. Dietz, Osborne, appellant. E. Richard Rausch, Beloit, Gantenbein, Frasier, Harry Fred W. W. of Gantenbein & Topeka, Jr., appellee. Abbott, P.J., Before Meyer, Swinehart & JJ. *2 from an resulting damages This is an action for Meyer, J.: teaching midyear appellant’s
alleged wrongful termination of contract. Dis- School (appellant) employed Crane was
Ross F.F.A. and agriculture trict No. 273 as a instructor vocational 14,1979, advisor, contract, pursuant August ato written dated teacher. period months; appellant a nontenured a of eleven meeting on No- (board) special Appellee school board held 5, 1979, appel- by resolution, terminated vember and the board de- upon specified reasons below lant’s contract based the six scribed, to-wit: class,
(a) In turned disciplining grader a ninth suddenly chair over back- flipped and the student in his desk floor, shoulder. hurting wards onto tiled the student’s (b) disciplined a tenth up, appellant Prior taking to class in the by kicking him foot grade student who was on crutches with such force that him lose his balance. it caused hit an
(c) Appellant temper lost his in a classroom fist, causing pain grade eleventh student in the chest with had a heart bruising, that the student knowing the time condition.
(d) shotgun appellant’s discharging 12-gauge As a result of 31, (October 1979), two students of at his home on Halloween pellets, by shotgun one school district were struck involved skull of one pellets lodged said base District Court of Appellant charged in the of the students. feloniously, and Kansas, unlawfully, County, Mitchell School, High willfully at Beloit applying force to student awith student, which was done injure with the intent to said deadly weapon. conduct, three
(e) inappropriate appellant’s As a result of the others desired class several students withdrew from his withdraw. loss of (a) (d) caused
(f) coupled through above Acts appellant, respect for student, parent, teacher and school board effectively as a function impossible making teacher of the involved school district.
By 5, separate special meeting resolution at the on November 12, 1979, the board set a hearing for November to decide whether said employment termination of was to be with or pay. without 6, 1979,
On November to termi- notice of the board’s decision appellant’s nate employment and notice of decide whether pay, such termination was to be with or without mailed certified mail. The notice of termination set forth the reasons for by appellant termination. It on No- was received vember 1979. 12, 1979,
On November to determine board held if pay, contract should be terminated with or without and the unanimously board then voted Although appel- as of November lant appear. received notice of hearing, he did not
On November ap- board received notice that pellant requested pursuant provi- *3 sions of K.S.A. 21, 1979, 72-5436 seq. et On November the appellant and respective board advised each other of their hear- ing appointees. 2, 1980, parties committee On January agreed the to the setting 30,1980, of a prehearing January conference on held, on that date a prehearing conference was at which time a April 22, 1980, upon. date of agree process A 22, 1980, April was held on special three-person delayed committee. This committee transmitting its findings fact of and recommendations on resolu- tion of the issues to the parties board until such time as both had submitted briefs to prepared brief; the committee. The board its appellant has never submitted his brief to the committee.
The hearing 8, 1981, findings May committee submitted its on recommended actions the though appellant complied had never request with the committee’s for a brief. The majority of the hearing committee recommended an affirmance of the board’s decision as of 12, November 17,
On 1980, prior December to the hearing committee’s is- suance recommendations, of its eight but some months after the hearing, appellant petition County filed his in the Mitchell Dis- Court, trict reinstatement, praying for salary back damages, theory under the that he deprived of a property right without 1981, a motion the board filed January process of law. On as a motion was treated this motion appellant’s petition; to strike judge. to dismiss the W. Richard judge, Honorable April
On the district parties, the Wahl, submitted considering after briefs a matter of ruled as petition appellant. court filed the alleged violation file an action law that could not process. The court held to due teacher, to no was entitled appellant, as a nontenured after-the-fact), claimed (either unless all before- or The court deter- constitutionally-protected right. violation of a termination was based wrongful mined that claim constitutionally-protected right and should upon his exercise of K.S.A. 72-5446. The court pursued under therefore have been pursue action under appellant did not held that because 72-5446, action could not be filed because K.S.A. remedies. his available administrative failed to first exhaust dismissal, appellant appeals.
From this deprived that he Appellant’s major contention terminated teaching contract was law when his making prior to the afforded no midyear because he was him. terminate of the decision to Amendment to the Fourteenth clause of provides:
United States Constitution privileges any abridge or law which shall State shall make or enforce “No deprive any person States; nor shall State citizens of the United immunities of life, liberty, . .” property, of law. . without due provi- Supreme interpreted Court has The United States Regents In variety of interests. Board a wide protecting sion as (1972), the Roth, 92 S.Ct. U.S. 33 L.Ed.2d *4 high court stated: safeguard protection property procedural is a Amendment’s “The Fourteenth specific person already acquired benefits. security a has interests that (p. 576) may many property take forms.”
These
interests —
interests —
held
process hearing be
that a due
mandates
K.S.A. 72-5438
immediately
renew, or to
is made not to
a final
decision
ex-
However, K.S.A. 72-5445
terminate,
contract.
a teacher’s
at least
72-5438 to teachers
applicability of
pressly limits
As to
district.
with the same school
service
years’
two
consecutive
contract,
a nontenured teacher’s
to renew
simple
a
decision
year,
made at the
the courts have
that no
end of the school
held
provided,
be
neither before the decision not to
need
renew, nor after it. This is because an untenured teacher has no
property
of his contract which
entitle
renewal
would
152,
him
App.
v. U.S.D. No.
6 Kan.
2d
Gragg
(1981).
On the
a
other
termination of
nontenured
differently
end-of-year
teacher has been treated
than an
Supreme
not to renew. The decision of the Kansas
Court in Wertz
District,
v. Southern Cloud
School
218 Kan.
P.2d
(1975),
midyear
teaching
makes it clear that a
of a
termination
contract,
involved,
even where a nontenured teacher is
does affect
a constitutionally protected interest. The court held:
stigma
mid-year
“The
which attaches to
dismissal of a
teacher
nontenured
incompetence
sufficiently injurious
and,
though
is
call
for a
statute,
requirements
is not
such teacher
afforded
state
process operate
statutory right.
the lack
[Citation omitted.]”
overcome
educational be that a teacher be relieved of immediately ordinarily duties but in fairness to teacher a should afforded before a decision to terminate without is made.” 218 Kan. appears It board believed immediate sus- pension teaching from was necessary. From the list of reasons given appellant’s termination, say it is hard to that the board wrong case, its belief. Unlike the situation in the Wertz discipline problems where the occurring at the school were
435 discipline in certain students than to lack of attributable more to incidents, alone, repeated Mr. Wertz’s class here record shows school, away of misconduct on both at and from the Also, part. in Wertz did not consider the troubles the court afflicting “of such a nature as to be considered that school to be disruption processes of the educational sudden serious Here, different; appel- school.” Kan. at 32. the situation is general lant’s own was the basis for the loss of con- conduct fidence in his as an effective teacher. The conclusion that abilities suspension duty required his immediate from to avoid disruption process appears serious the school’s of educational reason, not, reasonable to this court. For under Wertz, process hearing prior to a due holding entitled receiving notice of termination of duties. difference, however, suspension great
There is a between process teaching pending from the outcome of duties pay without a hearing and the termination of under the contract circum- The first is lawful in “extreme hearing. stances”; rights in the second is a violation of constitutional setting. propo- recognized by standing
Wertz is other courts as for the hearing sition that a teacher must be afforded a full due impartial prior midyear an before tribunal termination sus- pay. The extreme circumstances which allow for immediate suspension pension teaching do not allow duties also according first the teacher a full Cty., Dist. 432 F. Bogart See Sch. No. 298 Lincoln (D. 1977). Supp. Kan. termination, appellant notifi- With the notice of also received would the issue of whether his termination cation of on days five pay. This was held scant or without notification, the tribunal appellant’s receipt after very body that was the school before which it was held earlier. appellant’s contract one week had voted to terminate Wertz, type by the court This is not of the envisioned up to the definition of nor does measure opinion. Bogart, tribunal, impartial as discussed entitled, plaintiff be before hearing to which process requires the “Due must be component factors two are at least There makers First, impartiality. the individual determining considered in hearing; questions decided to be as to the factual bias must not have exhibited except second, in unusual circum occur before dismissal must *6 process consists of which offends due [E]vidence stances. . . . of actual bias on who must make factual determinations ‘statements on the merits those (10th page Mayes, at . . .’ v. 552 F.2d contested fact issues. Staton Supp. 1977).” Cty., 432 F. at Bogart Lincoln Cir. Sch. Dist. No. 298 of 903-4. summation of opinion contains an excellent Bogart also process: the law of due notice, process requires hearing, and method of “[P]rocedural due at least concept The extent of fundamental fairness. does not offend situation, depending upon hearing may vary all nature and from situation to process requires the decision- of the facts and circumstances. Substantive due presented amount of credible
maker to be with and to consider a minimal Again, support legal sufficient action. what evidence basis for its ultimate situation, although may vary constitutes it sufficient evidence from situation to only totally arbitrary enough prevent being need be the decision from and capricious. Supp. . . .” F. 905-6. Appellant appear at the held on November did not any Nothing indicates that the board heard record time; evidence at that pertaining to termination appears with- simply appellant, board voted pay, out as hearing. of the date of that That would not process even if had satisfied needs of due appeared impartiality and defended because the board lacked the required Therefore, right Bogart. did not waive his process to a hearing by his failure to attend. brings up question
This whether his waived process par- right requested to due when he ticipated admittedly impartial in a Appellant appeared at this after-the-fact hearing and defended on the merits. findings Before the committee had issued its recommendations, though, appellant independent filed this action claiming that had been denied due in his appears cooperate termination. It also ceased to with the hearing committee at that time.
In the Wertz case the court
that Mr.
ruled
Wertz did not waive
process hearing prior
his
to a due
when he
termination
part
refused to take
in an after-the-fact
which was offered
to him. The
situation here
slightly
Appellant
different.
not
granted
been
hearing to which he was entitled
salary
before his
He
terminated.
was offered an after-the-fact
accepted
He
the offer
conducted,
and the hearing all
conformity with the Teachers’
procedures
in substantial
being
pre-
departures from
Due Process Act. Because
minor
not
scriptions
merely technical
in nature and
of the act were
such
objection
he has waived
prejudicial
appellant’s rights,
at the
appearing
defending
matters of mere form
351, Syl.
Education, 221 Kan.
hearing. Schulze v. Board
¶
(1977).
The final issue is predicated on petition. This dismissal dismissing appellant’s his exhaust opinion that had failed to the trial court’s prior filing his action the district administrative remedies court. remedy for violation
The trial court stated K.S.A. 72-5446. in his termination was under right employed when procedure That involves the to be section exercise of that his his lawful teacher asserts termination is due to where constitutionally-protected speak to cases right; it does not merely procedure claims that used to terminate teacher process. Appellant contract denied his constitutional to due of his exercise has never claimed that he was because constitutionally-protected only not accorded rights, that he was proceedings. law For this in the termination reason, applicable K.S.A. in this case. 72-5446 is not petition
We conclude that the dismissal violated; Appellant’s unwarranted. been rights had paid had not been after November under him. though impartial granted no then been hearing had The action he filed was to assert and designed and intended protect asserting his due rights. Appellant was valid damages claim for This resulting from a denial claim could not or the be resolved committee board; adequate their function was to determine whether grounds appellant. grounds existed to terminate Even if such exist, were paid found to to be until such entitled made, upon time as a final decision to terminate was based findings Appellant thus had no admin- remedy, petition istrative and his should not been dismissed *8 on the incorrect that he exhaust his notion had failed to adminis- trative remedies. summarize, circumstances,
To under the board had the power suspend to appellant’s hearing. Appellant duties without a was, however, process hearing entitled a full due his to before salary suspended; granted he was not one. The at appellant’s pay which it was comply decided to terminate did not with Appellant’s law. failure to attend this should a waiver therefore not be considered of his due rights. hearing, properly The after-the-fact though conducted law, under the process hearing was no substitute for full due prior appellant’s pay; pro- conducted to the termination of that process rights. protect appellant’s due was not able to ceeding rights Thus, held to have waived those appellant should not be The lawsuit filed proceeding. in that limited involvement based on an unlaw- appellant damages claim for asserted valid admin- rights. Appellant had no deprivation ful of constitutional Therefore, the remedy injuries. redress his istrative available to appellant’s petition. improperly court with County District Court the Mitchell We remand case to responsive for petition, allow to directions to reinstate and other pretrial discovery pleading by the to allow trial, procedures, case to where and to allow the come on court. opinion of this apply the as reflected in the court shall law with directions. Reversed and remanded Abbott, J., I dissenting: would affirm the trial court’s dismissal appellant’s petition. prudent for the board The course school
obviously suspended appellant would have been for to have pay, process hearing, to have to held then appropriate taken action. however, majority appellant that agrees,
The
the conduct of the
extraordinary,
justified
and the school board was
dismiss-
ing appellant
majority
The
holds
without such
then
appellant
process hearing
that
was not afforded a due
to
were
and that he
not waive his
wages
terminated
did
such
I
hearing. disagree.
The school
offered
board
appear
termi-
opportunity
wages
and be heard before his
were
nated,
appear.
not to
There is no established
but
chose
period
time
in order
afford due
between notice
request
time,
does
The
not
nor
additional
give
time or even
requesting
valid reason for not
additional
necessary.
I
suggest why
time was
As
understand
additional
applicable law,
is on
to show a lack
burden
in a
process. Thus, appellant
participate
an opportunity
deliberately
so.
but
chose not
do
not be
majority
also holds
school board could
adopted
school
By
by majority,
the test
an-
impartial tribunal. The
board had
board was an
school
questions
bias as to “the factual
nounced its views
exhibited
Sch. Dist. No.
hearing.” Bogart
[the]
decided
1977).
(D.
school
Cty.,
Supp.
904 Kan.
432 F.
Lincoln
disruptive
conduct
so
board had determined
*9
employ-
process that it
terminate his
to the educational
would
with or
ment
and then decide whether it would be
pay.
and
investigative
The fact that a school board also has some
prosecutive functions in a
not ordi-
hearing of this nature does
narily
amount to a denial of
v. Board
Griggs
Trustees,
(1964).
Rptr.
61 Cal.2d
37 Cal.
Obviously a the facts and knowledge school board has some Morris has reached some conclusion is ordered. District, 268, 279, 30 (1934); v. School Million 139 Kan. P.2d 1094 Education, (1957). v. Board P.2d 917 181 Kan. bias, That fact standing alone does which would not indicate require disqualification. appellant All an required that is is that witnesses, opportunity given present be to be and to heard and examine the board’s accuracy. evidence test its It is the school decision, function to make the re subject the ultimate quirements normally will of law. The school board knowledge the why exact reason desires keep nonrenew a process requires teacher. Due that the board open mind, advocate, give that it not become an that it story teacher a fair opportunity present her his or side prevent and thus incom acting board from on erroneous or plete information. The trial court not find the school board to impartial tribunal, be biased or to unwilling be an I am unable to do so based on the record before us. appellant proceed requested himself that the school board
under K.S.A. seq.; 72-5436 et to do so and agreed school board participated. the lack apparent reason for was that school board before this action was filed appellant requested brief, time to file a but he failed to do so. As I decision, view the trial judge’s saying re- quested inapplicable statutory procedure followed, that an which the agreed, school board and that must follow procedure appeal. to a conclusion if he desires to I see nothing wrong with that holding.
If, fact, process, was denied due loss of could not necessary complete exceed that his contract of employment year for the school in which he was terminated.
I would affirm.