Russ v. White, 78-6041.

• Decision Date: 25 September 1981
• Docket Number: No. 78-6041.,78-6041.
• Citation: 541 F. Supp. 888
• Parties: John RUSS, Plaintiff, v. Charles R. WHITE, William Southard, James Mosley, Mrs. Guinn Daniel, David Whittington, Gene Parker, Ray Donathan, Mrs. T. J. Collier, Elroy Puckett and Gerald Fisher, Defendants.
• Court: U.S. District Court — Western District of Arkansas

541 F. Supp. 888

John RUSS, Plaintiff, v. Charles R. WHITE, William Southard, James Mosley, Mrs. Guinn Daniel, David Whittington, Gene Parker, Ray Donathan, Mrs. T. J. Collier, Elroy Puckett and Gerald Fisher, Defendants.

No. 78-6041.

United States District Court, W. D. Arkansas, Hot Springs Division.

September 25, 1981.

Byron Freeland, Mitchell, Williams & Selig, Little Rock, Ark., for plaintiff.

Richard H. Wootton, Wootton, Land & Matthews, Hot Springs, Ark., for defendants.

MEMORANDUM OPINION

OREN HARRIS, Senior District Judge.

This action, filed on October 10, 1978, in the United States District Court for the Western District of Arkansas by Dr. John Russ, seeks the recovery of damages, injunctive relief, and a declaratory judgment. Named as defendants are Gerald Fisher, President of Garland County Community College, and the nine members of the Board of Trustees for Garland County Community College.

The complaint alleges Dr. Russ was fired from his position as the Dean of Instruction at Garland County Community College (GCCC) in violation of the First and Fourteenth Amendments to the Constitution of the United States and 42 U.S.C. § 1983. In his complaint, the plaintiff states the defendants unlawfully terminated his contract. He alleges, inter alia:

6. The charges listed in a letter of April 21, 1978, were contrived by Dr. Fisher in a malicious attempt to wrongfully have the plaintiff discharged and to stifle any criticism of the actions of Dr. Fisher in his capacity as President of GCCC. The plaintiff's problems with Dr. Fisher began when he refused to go along with Dr. Fisher's actions in hiring two new employees at the college because of certain statements and actions of Dr. Fisher, which the plaintiff felt were misleading to the Board of Trustees and to the public. The plaintiff told Dr. Fisher that he refused to be responsible for the consequences of hiring the two new employees if Dr. Fisher persisted in following his course of conduct. Dr. Fisher became very angry over the incident, and from that time on began to prepare self-serving, twisted and maliciously untrue, confidential memos about his relationship with the plaintiff. Dr. Fisher placed these memos in the plaintiff's personnel file and later used them as the basis for his recommendation of dismissal. Dr. Fisher's actions were motivated by his unwillingness to tolerate any type of criticism of his office, and to discredit the plaintiff if and when any of the plaintiff's criticism reached the Board of Trustees or the public.

Plaintiff further alleges:

7. On the 20th day of June, 1978, a hearing on Dr. Fisher's recommendation to terminate the contract of the plaintiff was held before the Board of Trustees. Charles White presided over the hearing as Chairman of the Board of Trustees, despite the fact that he had actively advised Dr. Fisher during the controversy and had participated in the drafting of the charges against the plaintiff. In fact, Charles White was directly and personally involved in several of the incidents which were used against the plaintiff. In addition, Charles White had a direct conflict of interest, and should have been disqualified from hearing or participating in the case, as was requested in written motion filed by the plaintiff. Charles White had a conflict in that he is a member of a Hot Springs law firm which has as one of its largest clients Arkansas Bank & Trust. Charles White has a direct business interest in maintaining good relations with the Board of Directors of one of his law firm's major clients. In any event, the business relationship of Charles White and Dr. Fisher creates a suspicion or appearance of bias and impropriety. Defendant, Gene Parker, a Trust Officer of Arkansas Bank & Trust in Hot Springs, has a direct conflict of interest which should compel him to forego participating in any type hearing on the recommendation of Dr. Fisher, a member of the Board of Directors of Mr. Parker's employer. Gene Parker's participation in the hearing places him in an untenable position if he were to vote against the recommendation of Dr. Fisher. Charles White and Gene Parker should have disqualified themselves or been disqualified by the remainder of the Board of Trustees after the plaintiff presented written petitions for their disqualification. The participation of White and Parker in the decision to terminate the plaintiff denied the plaintiff the right to a fair and impartial hearing and amounted to a violation of the plaintiff's right to due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States.

8. The real and underlying motive of Gerald Fisher in making the initial recommendation for the termination of the plaintiff's employment contract was Dr. Fisher's desire to silence any criticism of the college or its administration. The actions of the defendants in terminating the contract of the plaintiff for his criticism of the college and its personnel amount to a violation of the plaintiff's First Amendment right of freedom of speech as guaranteed by the United States Constitution.

Dr. Russ also contends his termination was unconstitutional in that he was denied procedural due process of law:

9. During the hearing before the Board, Charles White as Chairman and with the consent and authorization of the other Board Members repeatedly refused to allow the plaintiff's attorney to cross examine Dr. Fisher concerning the allegations against the plaintiff. The plaintiff was not allowed to inquire into the truth and veracity of Dr. Fisher's testimony, and any questions which were obviously relevant but embarrasing to Dr. Fisher were repeatedly disallowed by Chairman White. When the plaintiff confronted Dr. Fisher at the hearing with a report to the North Central Association that Dr. Fisher had apparently falsified, Chairman White ruled that such cross examination was not relevant to the hearing, although the plaintiff had been accused of questioning Dr. Fisher's honesty. When the Board was presented with the concrete written documentation of falsified accreditation reports it refused to listen although it would tend to show the truth of the accusations for which he was being tried. One of the basic tenants of due process of law is the right to confront and cross examine witnesses, which was completely stifled by Charles White and the other members of the Board.

10. Another basic tenant of due process of law is the right to present witnesses on your behalf. In addition, the policy manuel of the Board of Trustees on page 32 specifically provides that an employee has the right to call any witness on his behalf. The Board refused to allow several of the plaintiff's witnesses to testify about Dr. Fisher's actions or other relevant matters. The plaintiff's witnesses were allowed to testify only to a very few specific topics, which were strictly dictated by the Board, and variance in the testimony discrediting to Dr. Fisher, the plaintiff's chief accuser, was never allowed to be heard.

Jurisdiction is premised upon 28 U.S.C. §§ 1331, 1343(3) and (4), 2201 and 2202.

The action was tried to the Court in June, 1981. Counsel for the parties were given the opportunity to file post-trial briefs. These have been received, and the case is now ready for decision.

FINDINGS OF FACT

The Garland County Community College is an institution of higher learning created and funded pursuant to the laws of the State of Arkansas. The GCCC was founded in 1973.

GCCC does not offer its employees "tenure" per se, but the college does employ its faculty and staff by contract and during the term of the contract, an employee has an expectation of continued employment unless dismissed for cause.

The Organization Chart of GCCC reveals that the President reports to the Board of Trustees who are elected by the voters in the college district. The four Deans (Dean of Instruction, Dean of Student Services, Dean of Community Affairs, Dean of Financial Administration) report directly to the President. The President, the four Deans, the Registrar, and the Assistant to the President comprise the Administration of GCCC. Each Dean supervises the employees in his area of responsibility.

The President is the chief administrative officer of the institution and the executive officer of the Board of Trustees. Final administrative responsibility for and authority over all activities of the college rests with the President. He is responsible to the Board of Trustees in all matters and serves as a bridge of communication between the Board and the College. The President's duties include the responsibility to nominate faculty and administrative personnel to the Board of Trustees for employment and termination. Dr. Gerald Fisher, a defendant, has been the President of GCCC since its inception in 1973.

GCCC is a small community college. The administration is small and, by necessity, the administrators must often serve in other capacities and perform other jobs. These range from serving in the unpaid position of Athletic Director to doing maintenance work on the college grounds. By necessity, the administrators must work closely in order for the college to run smoothly and efficiently.

GCCC is overseen by a Board of Trustees which is composed of nine (9) members. In April of 1978 the members of the Board of Trustees were defendants Charles R. White, Chairman; William Southard; James Mosely; Mrs. Guinn Daniel; David Whittington; Gene Parker; Ray Donathan; Mrs. T. J. Collier; and Elroy Puckett.

The Board of Trustees has the authority to terminate an employment contract for cause. GCCC has adopted a grievance procedure which directs an employee with a grievance toward his supervisor for discussion. Final appeal can be made to the Board of Trustees. If an employee is not offered re-employment, or is dismissed for poor or unacceptable performance, the employee may appeal to the Board of Trustees. Under the procedures...