Ambus v. Granite Bd. of Educ.

• Decision Date: 24 September 1992
• Docket Number: No. 91-4015,91-4015
• Citation: 975 F.2d 1555
• Parties: Gregory T. AMBUS, Plaintiff-Appellant, v. GRANITE BOARD OF EDUCATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1555

975 F.2d 1555

Gregory T. AMBUS, Plaintiff-Appellant, v. GRANITE BOARD OF EDUCATION, Defendant-Appellee.

No. 91-4015.

United States Court of Appeals, Tenth Circuit.

Sept. 24, 1992.

Stephen W. Cook of Cook & Davis, Salt Lake City, Utah, for plaintiff-appellant.

M. Byron Fisher (Michael L. Chidester, on brief), Fabian & Clendenin, Salt Lake City, Utah, for defendant-appellee.

Before LOGAN, MOORE and BALDOCK, Circuit Judges.

LOGAN, Circuit Judge.

Plaintiff Gregory T. Ambus appeals the district court's grant of summary judgment against him in his suit under 42 U.S.C. § 1983 for damages and reinstatement against the Granite School District Board of Education (Board), for violating his due process rights under the Fifth and Fourteenth Amendments when it suspended and then terminated his employment as a junior high school teacher. On appeal he argues that the court erred in (1) ruling that the school district is entitled to immunity under the Eleventh Amendment; (2) finding that a presuspension hearing was unnecessary and that postsuspension due process was provided; (3) ordering a new evidentiary hearing; and (4) finding that the new hearing before the Board provided due process. ¹

I

Plaintiff was under contract with the Board as a tenured teacher at Kearns Junior High School in Salt Lake City. The employment contract was subject to a "Professional Agreement," II R. doc. 29 at p 10, and the Utah Orderly School Termination Procedures Act, Utah Code Ann. §§ 53A-8-101 to -107, id. at p 11.

Plaintiff was arrested on April 7, 1986, and charged with two counts of distributing marijuana and one count of agreeing to distribute. The next day plaintiff's wife informed the school principal that plaintiff would not be at school that day because of the arrest and charges. Later that same day the assistant superintendent, Dr. Loren Burton, after talking with plaintiff about the arrest and charges and confirming them through the district security officer, notified plaintiff by letter that he was suspended without pay "on the alleged charges of a third degree felony recorded as distributing and agreement to sell a controlled substance." II R. doc. 34, ex. A. The letter stated that "[f]urther disposition of your teaching status will be determined by the outcome of the alleged charges," and informed plaintiff that he was "welcome at any time to an informal hearing and further discussion with your representative present." Id.

The nature of the contacts between plaintiff and Burton thereafter is disputed. Burton asserts that there were at least six meetings or phone calls between plaintiff and himself and that plaintiff refused to explain any of the circumstances of the charges. Plaintiff asserts there was no meeting, and that the phone conversations were to tell Burton of the trial date postponements.

In December 1986, the charges against plaintiff were dismissed by an agreement in which plaintiff became an informant for the Salt Lake police department. The Board thereafter terminated plaintiff's employment effective February 27, 1987, stating that it was for "conduct by you which violates the criminal law of this State or of the United States." II R. doc. 34, ex. B. Plaintiff requested a hearing pursuant to the Professional Agreement. Before the hearing was held, a state court issued an expungement order relating to plaintiff's arrest. The order sealed and expunged all records in the case, provided that plaintiff be judicially pardoned, and provided that no records in the case held by any "court, agency or official" could be inspected except on court order at plaintiff's request. Id. ex. C. On May 19, 1987, a different judge of the same state court denied the school district's motion to reopen the record in the case but also denied plaintiff's motion to prohibit testimony. The court stated that "Detective Oliver, or other law enforcement personnel, may testify to the conduct of [plaintiff]." Id. ex. D. That same day a hearing examiner, appointed by the Board, held a hearing at which plaintiff was afforded an opportunity to produce evidence and cross-examine witnesses. The hearing examiner stated he was bound by the order of expungement and refused to hear evidence of the criminal charges against plaintiff, or his criminal record, but did allow a detective involved in the arrest (Detective Oliver) to testify.

The hearing examiner concluded that there was not proof beyond a reasonable doubt nor even clear and convincing evidence that plaintiff had engaged in criminal conduct. The hearing examiner "strongly recommended that the termination be reversed and [plaintiff] be reinstated," as of the beginning of the next school year. Id. ex. E at 17. The Board "appealed" the recommendation and notified plaintiff that a hearing before the Board would be held; that plaintiff or his counsel would be allowed a fifteen minute presentation; and that no testimony or additional evidence would be accepted. After the hearing, the Board met in executive session on two occasions and ultimately voted to reject the hearing examiner's recommendation, and to uphold termination of plaintiff's employment.

Plaintiff later filed this § 1983 action. The district court granted summary judgment in favor of defendants as to plaintiff's first six causes of action, but finding that irregularities may have occurred during the Board review of the hearing examiner's recommendation, the court did not rule on plaintiff's other causes of action and directed the Board to conduct a new hearing. The district court directed the Board to respect the state court expungement orders but stated that "the Board may consider any direct evidence of plaintiff's conduct" that is relevant. I R. doc. 69. Plaintiff then filed a motion to prohibit the Board from using expunged records or testimony concerning the events involved in the drug arrest. The district court denied the motion for a protective order and stated that the Board "may elicit testimony from participants in the alleged criminal action but may not use records expunged and sealed by the [c]ourt." II R. doc. 72.

At the new hearing the Board introduced testimony from the arresting officer and the paid informant. Thereafter, the Board voted to uphold the earlier decision to terminate plaintiff's contract. The Board made findings of fact regarding its decision. Plaintiff then contested the Board's findings, claiming that: (1) there was no rational nexus between the findings and plaintiff's ability to teach; and (2) the Board violated due process by allegedly having district administrators present during the Board's deliberations. The district court disagreed, finding that there was a rational nexus and that the second Board hearing provided due process. As to the first Board hearing, however, the court found that plaintiff was denied due process and was entitled to compensatory damages and an award of attorney's fees on this issue. The Board then asserted immunity under the Eleventh Amendment. Plaintiff argued that the Board is not immune, but in the alternative moved to amend to add individual board members as defendants. The court ruled that the Board was immune from suit in federal court, citing Harris v. Tooele County School District, 471 F.2d 218 (10th Cir.1973), and Martinez v. Board of Education of Emery County School District, 724 F.Supp. 857 (D.Utah 1989), and denied plaintiff's motion to amend. The court also held that its earlier ruling allowing evidence relative to conduct involved in the expunged charges was correct, distinguishing Ambus v. Utah State Board of Education, 800 P.2d 811 (Utah 1990). Plaintiff appealed, alleging the points of error set out above.

In reviewing the district court's grant of summary judgment we "examine the record to determine if any genuine issue of material fact was in dispute; if not, [we] must decide if the substantive law was correctly applied." Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir.1988). We will affirm a grant of summary judgment if the record "shows that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Celsius Energy Co. v. Mid America Petroleum, Inc., 894 F.2d 1238, 1239 (10th Cir.1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

II

Because an Eleventh Amendment defense is jurisdictional, see Garcia v. Board of Educ. of Socorro Consol. Sch. Dist., 777 F.2d 1403, 1405 (10th Cir.1985), cert. denied, 479 U.S. 814, 107 S.Ct. 66, 93 L.Ed.2d 24 (1986), we begin by addressing plaintiff's claim that the district court erred in finding the Board immune from liability under the Eleventh Amendment.

The Eleventh Amendment bars a suit for damages against a state in federal court unless the state waives its immunity. See, e.g., Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1354-55, 39 L.Ed.2d 662 (1974). Congress did not abrogate the states' Eleventh Amendment immunity in enacting § 1983. See, e.g., Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358 (1979). Eleventh Amendment immunity extends to state agencies that act as arms of the state, but it does not extend to counties, cities, or other political subdivisions of the state. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). Thus, the issue before us is whether the Granite Board of Education is an arm of the state entitled to Eleventh Amendment immunity, or whether the Board is a political subdivision subject to suit in federal court.

In Harris v. Tooele County School District, 471 F.2d 218 (10th Cir.1973), this court held that a Utah school district is entitled to the state's Eleventh Amendment immunity. Id. at 221. In Harris we relied in part on Utah Supreme Court cases from 1964 and earlier stating that school districts are instrumentalities and agencies of the state....