*1 Nancy IVERSEN, Appellant, EDUCATION, BOARD OF
WALL
Appellee.
No. 18152. Dakota. of South
Supreme Court Aug. 1993. Briefs
Considered Sept.
Decided *3 Viken, Viken, Viken, Pecho- Lea M.
Linda Dewell, City, appel- ta, Rapid for Leach & lant. Gunderson, Palmer, Palmer,
J. Crisman Nelson, Rapid City, appellee. for Goodsell & BOGUE, Judge. Circuit appeals from a circuit court Nancy Iversen affirming portions of the decision judgment Department of Labor which allowed of the in evaluations inclusion of unfavorable employment file. affirm. her We
FACTS matter arose in At the time this (Iversen) taught Nancy had French Iversen English School District with Wall (District) years twenty the last ten of her beginning of year teaching At the career. year, District hired the 1990-1991 (Patterson) principal as Patterson Gale 13-43- high school. Pursuant SDCL adopted a- for the District had staff, re- professional of its two formal ob- quired Patterson to conduct each teacher under servations and evaluate continuing during the contract at least once year. April Patterson conducted his sec- of Iversen. observation ond observation Following this observa- was unannounced. tion, completed a formal evaluation Patterson he listed that Iversen instrument on which improvement four areas. needed disagreed with this evaluation and entered n file, personnel statement her demurral not understand claiming that Patterson did using day method she pre-observa- to hold a and that he had failed by poli- District required conference as tion cy. resolution, attempt an at informal
After
grievance which in-
formal
Iversen filed a
allegation
give great
eluded an
that Patterson had also
The court
weight
shall
to the
policy by allowing personal
findings
violated
bias and
made and
inferences drawn
complaints
parents
agency
questions
of unidentified
of fact. The court
may
students to influence his evaluation. Follow-
affirm the decision
agency
of the
or
ing a denial of relief in the local review
remand the
proceedings.
case for further
process,
grievance
Iversen’s
was heard
may
The court
modify
the deci-
reverse
(Department).
of Labor
De-
sion if
rights
substantial
appellant
partment found that Patterson had failed to
prejudiced
have been
because of adminis-
plan
inferences,
institute a written
of assistance for
findings,
conclusions,
trative
unsatisfactory performance ratings on Iver-
decisions are:
sen’s evaluation and ordered remedial mea-
(1) In violation of constitutional or statu-
*4
issues,
remaining
sures. As to all the
De-
tory provisions;
partment
against
ruled
Iversen.
(2) In
statutory authority
excess of the
agency;
of the
appealed
to the circuit court. The
(cid:127)
(3)
court
policy
concluded that school board
re-
upon
procedure;
Made
unlawful
quired
provide
that District
a teacher with an
(4)
law;
Affected
other error of
opportunity
respond
public complaints.
(5) Clearly
light
erroneous in
.of the en-
Therefore,
it
portions
ordered the
of Iver-
record;
tire evidence in
or
sen’s
upon parental,
evaluation record based
(6) Arbitrary
capricious
or
or character-
complaints
student and staff
expunged.
be
ized
abuse of
clearly
discretion or
In
respects,
all other
the court affirmed De-
unwarranted exercise of discretion....
partment’s
appeal
decision. On
to this
presents problems
This section
regarding
Court, Iversen raises three issues.
which of
apply
these standards
to which of
1. Whether
the “abuse of discretion”
reviewed,
decisions,
being
the items
i.e.
find-
applies
standard
reviewing allegations
when
ings,
Permann,
inferences or conclusions.
that a school board has
policies.
violated its
grievance over violation specific application from of stan- appeals garding which arise this from Depart partially past. of a contract. in the This is due to nonrenewal dard prior in Fisher v. its decision ment cites semantic confusion. 14G, Dist., #HF Falls School Sioux 1989/90 discretion itself Abuse of concerns However, this support of this conclusion. aspects two of a decision maker’s choice: with is without merit.* distinction (1) authority making whether there is policies of a school board All of (2) decision; and is whether decision law, thus, a board must have the force determined, justified under facts as i.e. is Nordhagen its own rules. v. comply with arbitrary capricious. An abuse District, 474 Springs N.W.2d
Hot
discretion refers to a discretion “exercised to
(S.D.1991). A
must follow
512
school board
by,
purpose
justified
an end or
and clear
they deal with
evalu
policies,
its
whether
evidence,”
ly against
reason and
or the decision
continue
ation of teachers
Dacy
standard.
part
two
the. abuse
policies
drafting
cover
employment.
(S.D.1991).
Gors,
471 N.W.2d
statutorily
ing
matters is
mandated.
both
1-26-36(6)
lists the standard
review
SDCL
13-43-26;
13-43-9.1
et
See SDCL
SDCL
“arbitrary
disjunctively,
capri
as
either
addition, in
to determine an
seq.
order
*5
by abuse of
cious or characterized
discretion
appeal, this Court
issue on administrative
clearly
or
unwarranted exercise of discre
of each
the conclusions
deci
must scrutinize
statutory language implies
The
tion.”
differ
Applica
appeal.
in the chain of
sion maker
Actually,
ent standards.
“abuse of discre
Company,
Bell Tel.
382
tion Northwestern
of
joined by
tion” covers all
items
in
the
“or”
(S.D.1986).
Thus,
415
the same
N.W.2d
subsection 6.
applied to
of review must be
each.
standard
“clearly
which are
un
Decisions
reveals that both the circuit
The record
discretion”
warranted exercise of
constitute
Department examined
court and the
the
authority.
an abuse of
Decisions which are
authority
on Patterson’s
to
Board’s decision
“arbitrary
capricious”
clearly
justi
or
are
of
act and his adherence to the mandates
the
existing
under the
facts and
fied
circum
Furthermore,
policy.
District’s evaluation
stances.
frequent
court made
reference to Patter-
the
determining
in
discretion
which of the
son’s
tests,
legal,
Both
the
or
one
whether
expunge from Iversen’s evaluation.
items to
second,
factual,
authority,
there is
the
or
Although they incorrectly
that
concluded
re-
justify
the
whether
circumstances
deci
the
inap-
for an “abuse of discretion” was
view
sion, must be
As the
viewed.
Court has
propriate,
the
and the cir-
both
discretion,
regard
judicial
in
stated
the
applied
in their
cuit court
this standard
re-
appropriate test
is “whether we
a
believe
scrutiny
spective
of
Board’s decision and
mind,
judicial
in
of the law
view
and the
principal’s
conduct. Since this Court has
circumstances,
reasonably
could
have
consistently
the decisions of
reviewed
Dacy,
reached that
471
conclusion.”
N.W.2d
discretion,”
it
“abuse of
is
board
added).
(emphasis
at 580
reviewing
proper standard when
whether
policies.
has
a school board
violated one of its
legal aspect
authority
is the
acts,
having determined that “abuse of under which a
maker
While
decision
whether
statute,
by
rule,
appropriate
provided
discretion” is
to the review in
administrative
or
decisions,
(S.D.1977)
students).
variety
(reassignment
of
of
*A wide
school board
other
In addi-
issues,
tion,
Educ.,
under
than nonrenewal
are reviewed
an
in Mortweet v. Ethan Board
241
Kellogg,
abuse of discretion standard. See
(S.D.1976).
479
County,
N.W.2d
582
Davison
(minor boundary change);
N.W.2d at 147
Maas
we refused to
administrative func-
differentiate
(termination
jo,
Superin
194 exposition by the of the law some- the as found the and leave upon facts
Based court, of appears this Court This to be one Department and circuit one else. those nothing to that either Patter- and one of times. indicate cases those finds arbitrarily, capri- the Board acted son or including MILLER, C.J., unreasonably by special writing. sub-
ciously joins this file. in Iversen’s jective evaluations WUEST, (dissenting). Justice as to of the circuit court this the decision purpose evaluation statutes teacher is affirmed. issue provide to teachers “so that is to feedback is contention that Iversen’s final attempt they improve can themselves[.]” circuit Department and the court both the 2-4, Wessington v. Dist. No. 307 Fries Sch. fashioning their discretion in reme abused (S.D.1981). 875, 879 As noted N.W.2d policy which each for violations dies majority opinion, a school board “once has Department found found to have occurred. adopted regulation, rule such as a with mandated written that the evaluations, it has the force of teacher law.” any performance for rated plan of assistance Educ., v. Bd. 339 Schaub Chamberlain improvement.” this was “needs Since as 307, (S.D.1983) (citing 310 N.W.2d Dale done, Department District to com ordered Educ., Dist. Board Lemmon Ind. Sch. 52- only ply. that this added Iversen claims (S.D.1982); 316 N.W.2d 113 Schnabel injury, actually made her insult to file 61-1, v. Alcester Sch. No. Dist. N.W.2d However, requirement of look worse. (S.D.1980)). The result reached is to benefit a plan written assistance circuit court in this case and affirmed objective by giving criteria to teacher majority opinion allows a school board Ordering improvement. this measure reme policies the resulting violate its own and use (cid:127) clearly authority dy within and discre- is providing for than purposes evaluations other Department. tion of the improvement. feedback teacher of the circuit court Therefore decision principal The record shows Patterson affirmed. School, and graduated High from later Wall taught High eight at the Wall MILLER, C.J., SABERS, J., concur years. principal in serving Philip, After as a in result. years, Dakota for three he returned to South *7 AMUNDSON, JJ., and dissent. WUEST high in 1990. principal Wall as school Pat- BOGUE, Judge, for (re- Circuit terson’s brother’s wife sister-in-law —his HENDERSON, Justice, Patterson”) who at the Retired only as ferred to “Mrs. —teaches Court, action to the time this was submitted high According at the school.1 to Iversen’s was a member the Court. testimony, part-time Mrs. was a Patterson English teacher of home and economics for KONENKAMP, J., having a been many years. testified- that Mrs. Iversen Pat- member of the Court at the time this case teacher, recently terson was made a full-time submitted, did participate. stating: result). SABERS, (concurring in Justice teaching a full [N]ow [Mrs. Patterson] I to affirm circuit court vote because classes, English teaching load of classes failed to a violation establish taught years. I have that And appeal. 1-26-36 in SDCL this year only second semester this I’ve been expedite assigned I rather and two And to me it class[es]. would vote to affirm looks my classes from me this ease based on Dakota Law like were taken and settled South 15-26A-87.1(A)(1). given It to so that she [Mrs. Patterson] under SDCL seems to would possibly opinion questions that this more be a full-time teacher for sure and me raises I problems than it resolves. There are would be either fired reduced half simply time. times when we should decide case Principal grade teaches in the Wall district. Patterson's wife also fourth mately later, assigned upper to teach level four and one-half
Iversen was months on electives, English reg- April students for which few 1991. Patterson attended the class minutes, year.2 present istered for the 1991-92 school The for 34 was not for the first staff reduction 15 minutes of the Wall district’s class and left before the period. in end of the postobserva- allows various criteria be considered Patterson’s part tion notes state in determining professional staff that: could be off, including laid evaluation records. Student involvement only was limited to few. The class is teacher in dominated findings circuit court announced its that the talking. teacher does most of the and conclusions from the bench. The trial join At least one student did not in at all. judge that found was in error and that it was “a clear violation of the instrument, In the evaluation Patterson [public complaint] policy” “anony- and that that, states “There was not a lot of student complaints” mous or unsubstantiated could participation in the classes I observed” in process. not be considered the evaluation improvement” marked Iversen as “needs Further, any comments or consideration of 11(C), on Item thought “Stimulates and inter- Iversen’s use of sick leave were not to be Clearly, est.” this conflicts with Patterson’s process. in the considered regarding *8 in, knowing ator who comes what he’s I did not hear a review information. coming trying into and what is to be ac- objectives given
No were for the class. complished.... When he didn’t know walking he what into what she was added.) (Emphasis Although Patterson trying accomplish, up he comes with this postobservation states that the December theory teacher domination and so on. He preobservation conference also served as the understanding doesn’t have an of what (second) subsequent conference for the ob- trying accomplish. she’s servation, (other the record does indicate above) Nevertheless, than the comments shown what he the circuit court held that Pat- looking would be the next observation. terson could down write his observations —in place approxi- spite principal/evaluator The second observation took fact that Although Summary: the record does not indicate the en- iors. Executive 1993 South Dakota School, High judi- rollment at Wall we can take Report Program, Dep’t Card South Dakota cial that the 1992-93 notice enrollment at the (1993). of Educ. students, graduating school was 90 with 18 sen- understanding of what the no idea had trying accomplish in that class
teacher was place critical comments in
period these —and file. permanent evaluation the teacher’s mockery makes of teacher
This result systems, ignores our stated and No teacher
purposes of teacher evaluation. improve” or himself “attempt to herself
can and “feed-
when the evaluative comments complete on a lack of under-
back” are based accomplished
standing what was to be Fries, period.
during class 307 N.W.2d opinion in this
at 879. The result reached administrator to observe
allows period 175-day a class out of a
minutes of conclusions, year, reach invalid and in a place
then those criticisms teacher’s subsequently be used whatever
file—to
purpose the administrator or school board legislature specifically mandat-
desires. adopt that school boards an “official evalu-
ed so that tools could be used policy”
ation these encourage professional growth. SDCL growth Professional of teachers in
13-43-26. not result if can
this state will evaluations be in the herein.
carried out manner shown respectfully I dissent.
AMUNDSON, J., joins this dissent. Dakota, Plaintiff
STATE of South Appellee,
Jeffrey CLAUSSEN, L. Defendant Appellant.
No. 18300-a.
Supreme Court Dakota. of South 1994.
Considered Briefs Jan. Sept.
Decided notes the December observation any the circuit court ordered that comments that “All the students were involved in the on the evaluation that could be construed to Additionally, spite class.” of the fact that originated anonymous have from the com- admittedly Patterson had no idea what Iver- plaints or sick leave concerns must be ex- trying accomplish sen was April punged. proper. This was class, improve- she was marked as “needs III(D) (E) ment” on Items and —“Utilizes A review the record shows that Patter- approaches” different instruction and “De- son’s first observation Iversen’s signs appropriate questions and uses to elicit place took 1990. Patterson December responses.” again student Patterson com- preobservation held conference wherein mented that the class was “teacher dominat- place regarding specific discussion took items ed.” to be observed. Patterson observed a principal The circuit court criticized Pat- French class for 46 minutes. The written terson’s evaluation method wherein Patter- observation record is detailed. In his com- postobservation son combined the December ments section Patterson states: subsequent preobserva- conference with the good. Time on task was tion conference. The court stated: All the students were involved in the class. There’s a weakness in the method he se- activity The class moved from one to an- just go validity, lected. It doesn’t to the it delay. other without goes weight credibility to the or the Repetition good technique ais for students you’re going place value on the evalu- to remember the work.