*1 402 rеjected v. City this rule Columbia Water Power Co. at 288
of
Columbia,
(citations omitted).
226
[388]
This
(1873).”
rejection
Id. at
mutuality
355
remedy is in accord with the Restatement
(Second)
of Con
tracts,
fact
recognizes
party
which
that one
is not allowed
injunction
or an
is not a sufficient
specific performance
reason
party.
(Second)
to refuse it to the other
Restatement
(1981);
§
cmt. c
see
v. Ford
also Goodwin
Contracts
Co.,
(M.D.Ala.1997);
F.Supp.
Motor Credit
Restate
(1979)(“[i]f
the requirement
(Second)
ment
of Cоntracts
met,
of consideration is
there is no additional
requirement
”);
Assocs.,
‘mutuality
obligation.’
...
Doctor’s
Inc. v. Dis
(2d Cir.1995).
tajo,
CONCLUSION reasons, For the we foregoing reverse the trial court’s finding of unconscionability and remand the case for further proceedings. AND
REVERSED REMANDED. CURETON, JJ.,
HOWELL and concur.
v. THE BOARD OF TRUSTEES OF SUMTER COUNTY 2, Appellant.
SCHOOL DISTRICT NO. No. 2811. Appeals Court of of South Carolina.
Submitted Oct. 1997. Decided March 1998. Rehearing April Denied *2 Columbia, for White, Halligan, of Childs & Andrea E. appellant. Shuler, Sumter, Seth, Jones, respon- for Seth &
J. Cabot dent.
HEARN, Judge: The Board of Trustees of County Sumter School District 2 appeals Number the circuit court’s reversal of the Board’s decision to Judy terminate the Hall. The Board argues substantial evidence supports findings its with respect Hall’s unfitness for teaching and insubordination. disagree We and affirm the circuit сourt’s decision to reinstate Hall’s employment.1
FACTS Respondent Judy Hall served as a specialist media Furman High School in years. Sumter for fifteen Simon, Margaree teacher, High another Furman asked Hall to chaperone the senior class trip Disney World. Hall Later, initially declined the invitation. when another teacher go, class, could not Hall agreed to travel with the basing her *3 decision on an agreement with Simon that she would serve as chаperone a only traveling while to and from Florida and during a visit to shopping a mall. duty” She would be “off Florida, all other times. Once in stayed Hall with a friend different hotel. Hall returned with the class to Sumter at the end of trip.
Prior trip, to the Furman High School’s principal, Renee Mathews, approved designation Hall’s as a chaperone.2 She not, however, did learn of agreement with Simon until after the class returned. questioned When she Hall about her stay studеnts, decision to apart from the Hall acknowledged that she in a stayed separate friend, hotel with her but that Simon—the trip’s lead organizer approved the arrangement. — It is conceded is policy there no written for chaperoning off- campus events or trips.
1. We argument pursuant decide this case without oral to Rule SCACR. policy principals 2. The school responsible district’s states that are for ensuring trip adequate chaрerones. each field has an number of level, high chaperone At the required every school one is for fifteen case, eight chaperones supervised students. In this approximately forty students, giving group nearly chaperones three times the number of required. it Baker, findings super- Mathews her to Dr. Frank reported 6,May of Furman’s school district. Dr. Baker intendent On Hall and her on administrative leave. Baker placed met with Hall not to discuss the matter with other any admonished closure of Hall met employees pending investigation. his later " again discussing with Baker admitted the matter with employees, including May three Simon. On Baker recom- mended that the Board terminate Hall’s based on supervise during Hall’s failure to the class and Hall’s stemming co-employ- from her discussion with ees. accepted
The Board Baker’s recommendation and terminat- employment. petition judicial ed Hall’s Hall filed a reviеw of the Board’s decision. The circuit court reversed and the appeals ruling. Board from that
SCOPE OF REVIEW terminating Our review of a school board decision a teach er’s employment normally determining is limited to whether it supported by is substantial evidence. Felder v. Charleston Dist., County School
(1997). This court an if may reverse administrative decision reliable, “clearly that decision was erroneous view of the probative, and substantial evidence on the whole record” such [rights] party prejudiced.” that the “substantial of a have been 1-23-380(A)(6)(e) § (Supp.1997); S.C.Code Ann. Lark v. Bi- Lo, 130, 132-33, More over, this court an if may reverse administrative decision due to' rights appellant prejudiced substantial have been l-23-380(A)(6)(d) Ann. (Supp. an error of law. S.C.Code *4 1997); Lark, 132-33, 276 276 at S.E.2d at 305. S.C.
DISCUSSION power employ school boards have the to and dis- Local 59-19-90(2) (1990). §Ann. Our charge teachers. S.C.Code the termination of a teacher’s Assembly permits General the affording a reаsonable time for employment—without under certain rectify offending only teacher to the behavior — 59-25-430 of the Teacher narrow circumstances. Section “Any may Dismissal Act teacher Employment provides: 406 fail, any may
be dismissed at time who shall or who be incompetent, give to instruction in accordance with the di- superintendent, rections of the or who shall otherwise mani- any teaching....” fest evident unfitness for S.C.Code Ann. (1990).' § 59-25-430 Other or shortcomings, deficiencies how- ever, must by giving be addressed the teacher notice and a improvement. § reasonable time for S.C.Code Ann. 59-25- (1990); Adams v. Clarendon Sch. Dist. No. S.C. improve to Failure within this time constitutes a “good and sufficient” reason warranting the termination of employment. S.C.Code Ann. 59-19-90(2); Adams, 272-73, at S.E.2d at 900. case,
In this competence as a teacher has not been To challenged. contrary, only the evidence shows that her performance for past yeаrs fifteen satisfactory, highest rating generally given to teachers. Nor has Hall failed to give instruction accordance superinten- with the Therefore, dent’s directions.3 only basis for terminating Hall without giving opportunity her reasonable to rectify the offending behavior must involve evident unfitness for teaching.
Section 59-25-430 sets forth a examples non-exclusive list of of unfitness for teaching. Examples “persistent include ne- glect of willful duty, violation of rules and regulаtions of [the] trustees, drunkenness, district board of conviction of a viola- tion of the States, law of this State or the gross United use, immorality, dishonesty, illegal possession sale or of drugs or narcotics.” It undisputed Id. is that Hall’s conduct does not fall any within specifically these delineated categories. argues
The Board
supervise
Hall’s failure to
and insub
ordination demonstrate her evident
teaching,
unfitness for
thereby justifying her dismissal without providing her with a
improvemеnt.
reasonable time for
disagree.4
We
Baker,
superintendent,
3. Dr. Frank
testified:
Hillcrest,
"I have known Ms. Hall ... since she started to work really
nothing negative
say
and I
performance.
have
to
about her
I
nothing negative
say
support
about her in terms of her
performance
District and in
beyond
terms of her
as it relates to
things
classroom with extracurriculars and
of that nature. And in all
anything negative
say
truthfulness ...
I do not have
on that.”
chaperones
may
4. Some of
subject
the other
on the
well have been
to termination under this Code section.
record reveals that
two
*5
and
Act
Although
Employment
the Teacher
Dismissal
to
a
contemplates
teaching”
encompass
“evident unfitness for
deficiencies,
variety
broad
the Act was also intended
prevent
power
the abuse of a school board’s
of termination.
Adams,
6,
at 272 & n.
school board’s immediate termination where the among things, other referred to fellow teachers and students as “stupid,” provision emergency obstructed medical for a a pregnant suffering miscarriage, service student used profanity, and otherwise created a school environment filled “turmoil, tension, conflict, with fear and an absence of trust and ... at war Id. at respect society.” with the interests of 550-51, at 340 S.E.2d recently,
More
court
unfitness for
supreme
extended
to a teacher’s
in an unauthorized stu-
teaching
participation
dent
to the
directive of the
protest, contrary
specific
principal
Felder,
23,
the students return to class.
at
at
link
192. The court found a clear
between
insubordination,
her
teaching,
teacher’s
her unfitness for
and
Id.
ability
perform
job
professional
her
duties
a
manner.
at 193. The court also affirmed the school
489 S.E.2d
to her
finding
board’s
that the teacher made
false statement
25-26,
Id. at
In Hendrickson v. School court affirmed a teacher’s immediate termi- Number this a student and could not slapped nation where the tеacher or classroom. 307 S.C. temper maintain control her accompanied trip by men other married women teachers were on Hall, spouses, approval than their without notice to or the school. however, only met her male friend in Florida after is unmarried Moreover, principal separating must have from the students. her meeting appeared him there since his name known that Hall would be approved trip. on the list of adults on the 112-13, (Ct.App.1992). 873-74 also upheld We an principal immediate termination where a failed to supervise instruction accordance with the superintendent’s directions. *6 Barr v. Board Trustees Clarendon Sch. Dist. No. of 2, 522, 530-31, 316, 319 S.C. 462 S.E.2d (Ct.App.1995), 320-21 denied, 1996). 4, conduct, (Apr. held, cert. This the court 530, demonstrated a “persistent neglect duty.” Id. at S.E.2d at 321. contrast,
By when a teacher’s conduct does not demonstrate unfitness for teaching type contemplated by previ- the dеcisions, cited ously procedural safeguards must be followed to allow the teacher reasonable time to correct the problem. This delineation is an one. in important As noted Johnson v. 7, Spartanburg County School District Number “[t]here must cases, be a distinction between the or it renders the legisla- procedural ture’s intent to create safeguards for educators a (1994) (assis- nullity.” 314 S.C. principal tant opportunity demoted without an to modify offen- sive behavior being given and without notice that he risked demotion). Supervise
I. Failure to The most cogent argument the Board makes is that students were entrusted to Hall for the duration of the trip and that “common sense” would dictate that she had a duty to supervise them at all times. It also Hall maintains should reported agreement her concerning chaper- limited one duties to her principal arrangement because the outside of the nоrm. earlier,
As noted presence Hall’s was not needed because trip already had more than the required number of Moreover, chaperones. the Board introduced no evidence to contradict Hall’s testimony agreement about her with Simon. addition, the Board admitted no written policy existed which responsibilities set out the chaperone. of a Hall did exactly agreed what she to do: supervise the students on the trip to and from Florida and them chaperone at an Orlando shopping Regardless mall. of what common sense would dictate, appear the immediate termination of a teacher with years experience fifteen for reasons unrelated to discharge teaching her responsibilities upheld cannot be under these Felder, presented circumstances. Unlike situations Barr, Kizer, Hendrickson, “objectionable” behavior persis- teacher and was not trip’s lead was sanctioned tent, abusive, teaching of a flagrant supervisor’s or violation directives.
II. Insubordination law, defined as a wilful or At common insubordination was and reasonable instructions disregard intentional of the lawful Co., v. Pontiac 236 S.C. King an Freeman employer. E.g., 346-47, this Notwithstanding definition, supreme application our court has limited its broad in the context of teacher to cases where insubor teach, substantially inter dination evidences “unfitness duty, and consti performance [a teacher’s] with the fere[s] Felder, conduct.” unprofessional tute^] upheld state courts that have termi S.E.2d at 193. Other *7 have established a similar connect nation for insubordination not that the cases relied on the dissent do ion.5 We note involve teachers. were Dr. Baker’s instructions deciding
Without
whether
lawful,
disobeyed
Hall
his
undisputed
or
it is
reasonable
three fellow
by discussing the situation with
instructions
find, however,
insuffi-
produced
that the Board
teachers. We
alleged
evidence to show that
cient
teaching.
Anonymous
for
demonstrated evident unfitness
See
Examiners,
371, 376-380,
v. State Board Medical
of
(1998) (evidence
17,
hear-
administrative
20-21
Flaming,
P.2d
Sch. Dist. RJ-1 v.
938
E.g.,
5.
Board
Yuma
of
Educ. of W.
151,
(Colo.1997) (insubordination
disregard
supported by teacher’s
159
concerning
superiors
use of force in
express
of her
directions
1017,
Harris,
classroom);
Ill.App.3d
161 Ill.Dec.
Board
v.
218
of Educ.
651,
1252,
denied,
1244,
appеal
142 Ill.2d
164
578 N.E.2d
914,
(1991) (continued
accept
refusal to
class
We that section 59-25-430 defines “unfitness for teaching” Nevertheless, a non-exclusive manner. the type of conduct referred to in the persistent neglect of statute — duty, drunkenness, wilful violation of rules and regulations, crime, conviction оf a gross immorality, use, dishonesty, illegal sale or possession drugs clearly exceed Hall’s acknowl- — edged failure to comply general with Dr. Baker’s admonition “not to any discussion with other employees.”
Although Dr. Baker testified he issued his directive because “the matter was under investigation,” there is no evidence that Hall’s insubordination affected her primary Moreover, duties as a specialist. media the record does not contain any еvidence showing attempted she to undermine the fact, investigation. one of the three conversations used to justify her termination occurred when a fellow teacher unasso ciated with the senior heard Hall upset and called to check on her.6 Dr. Baker did not know whether Hall initiated these conversations or their substance. While we recognize that a single could, act of disobedience under some circum stances, be justify sufficiеnt to a teacher’s termination even it though was unrelated to that teacher’s perfor classroom mance, the scant evidence introduced here is insufficient to show Hall’s teaching unfitness for within meaning 59-25-
The decision of the circuit judge court is therefore AFFIRMED.
STILWELL, J., concurs.
HOWELL, C.J., dissents a separate opinion. Judge King found impede superinten- Hall's conversations did not the investigation, dent’s necessarily agree but we do not that lack of prejudice would еxcuse clear acts of insubordination.
4H HOWELL, dissenting: Judge, Chief Hall’s majority concludes that dissent. The respectfully I for “an evident unfitness cannot constitute insubordination § Ann. 59-25-430 contemplated by S.C.Code teaching” as (1990), decision to be controlled thereby causing the Board’s however, overlooks the majority, of The by an error law. unprofes- concerning gross Board before the evidence I that Hall’s sional conduct and insubordination. believe insubordination, alone, “an evident unfit- constituted standing review, and, would scope our of teaching” given ness for trial court. reverse the empowered local school Assembly specifically
The General Ann. discharge teachers.” S.C.Code “[ejmploy boards (1990). 59-19-90(2) that teachers 59-25-430 states Section unfitness for time for “an evident any dismissed at may be addition, a non- provides 59-25-430 section teaching.” which, as teaching, for examples list of of unfitness exclusive duty, notes, neglect of majority “persistent includes: the regulations of district board of rules and willful violation drunkenness, of the law of trustees, of a violation conviction States, dishonesty, gross immorality, or the United this State narcotics.” use, drugs or illegal possession sale or that fits within majority I the insubordination agree with Felder v. 59-25-430. See statutory framework of section Dist., County Sch. Charleston policy (1997). general public common law reflects Our supreme go unpunished. not should disrе- “a or intentional as wilful court defined insubordination the employ- and reasonable instructions of the lawful gard Co., Bottling Pepsi-Cola Porter v. er.” Bottling Pepsi-Cola In Porter v. permitting behind explored policy the court Company, insubordination, contract of an termination stating: is employees duties of the fundamental
Among orders, rales, to all reasonable yield obedience obligation intentional and wilful or employer, and instructions rale, thereof, justifies a rescission general as a disobedience dismissal peremptory and the the contract of service in a disre- consists the disobedience employee, whether *9 gard express provisions contract, of the general rules instructions, or particular or commands. This rule is not restricted to employees subordinate positions, applies but to those employed executive or supervisory capacitiеs, although with to the respect latter it is recognized they that are not bound to such strict adherence to directions as is one employment whose involves the exercise of degree less of responsibility and discretion. The fact that an employee position holds a of authority others, over involving the exercise of executory and supervisory powers, does not relieve him from duty of obedience to orders of the superiors. 375, 147
Id. at
S.E.2d at 622.
supreme
court revisited the
insubordination
again
issue
in Young v. McKelvey, 286 S.C.
(1985),
I believe that majority erroneously concludes that “the produced Board insufficient evidence that alleged insub- ordination demonstrated evident unfitness teaching.”1 While some instances of a mаy teacher not fitness, affect this case is not one of them. According to the principal’s May report, the principal first instructed Hall not to discuss the events of the field with other staff members because of other attempts teachers’ to mislead her concerning the facts of the trip. field principal’s Given the desire to uncover the truth about a situation that ultimately could have led to the termination of only not Hall but other teaсhers on the trip, field the principal’s instructions were Obviously, encompasses a teacher's function more than that of' an judgment instructor and a on fitness to teach should be based on much just performance. more than classroom receiving principal’s report, eminently reasonable. After there concerns conveyed principal’s which *10 her, to deceive the by effort some of the teachers concerted Hall nоt to discuss the case with also ordered superintendent Likewise, was superintendent of the staff. the other members addressing parents the concerns acting reasonably by district. Hall's integrity to of the school protect and subject of the grave revolved around the The result of conduct of a number teachers. unprofessional of the field with other to discuss the events decision fact-finding impeded of the staff was that she members superintendent by and her principal mission of both her Thus, I investigation. of their tainting forever the results a matter of law majority incorrectly that the ruled as think as an evident was not actionable that Hall’s insubordination 59-25-480.2 teaching under section unfitness enough was material Hall’s insubordination Whether that the as a teacher was a determination affect her fitness to make. After hear- qualified particularly school board was evidence, that Hall’s insubordina- the Board decided ing enough to warrant dismissal under section egregious tion was if it is the Board’s decision must affirm 59-25-430. We Dorchester Kizer v. Coun- by substantial evidence. supported Trustees, Educ. Bd. ty Vocational (‘“Substantial (1986) evidence’ is evidence whole, reason- which, would allow considering the record as reached or conclusion that the Board minds to reach the able action.”). I believe justify in order to its must have reached improper to an substitution majority oрinion amounts that the view, there is my of the facts. interpretation of their the Board’s decision. support evidence substantial proceeded by majority the Board should Any assertion that 2. (1990) misplaced. Section 59-25- is under S.C.Code Ann. 59-25-440 supervisor a teacher for conduct requires to first admonish time for and then allow a reasonable which could lead to dismissal improvement cannot time for improvement. Notice and a reasonable damаge by caused damage Hall’s insubordination. cause cure complete time of her insubordina- at the Hall’s insubordination insubordination, section repeat her Assuming Hall does not tion. punish Hall for recourse to the board without would leave 59-25-440 her insubordination. I,therefore, would reverse the trial court and reinstate the Board’s decision to terminate Hall under section 59-25-430.
Heard March *11 Decided March Holmes, Christopher Charleston, McG. for appellants.