Abell v. Nash County Bd. of Educ.

• Decision Date: 06 November 1984
• Docket Number: No. 847SC91,847SC91
• Citation: 71 N.C.App. 48,321 S.E.2d 502
• Parties: , 20 Ed. Law Rep. 1249 Timothy ABELL and Don A. Reams v. The NASH COUNTY BOARD OF EDUCATION.
• Court: North Carolina Court of Appeals

Page 502

321 S.E.2d 502

71 N.C.App. 48, 20 Ed. Law Rep. 1249

Timothy ABELL and Don A. Reams v. The NASH COUNTY BOARD OF EDUCATION.

No. 847SC91.

Court of Appeals of North Carolina.

Nov. 6, 1984.

Thorp, Fuller & Slifkin, P.A. by James C. Fuller, Jr., Raleigh, and Chambers, Ferguson, Watt, Wallas & Adkins, P.A. by John W. Gresham, Charlotte, for plaintiffs.

Valentine, Adams, Lamar & Etheridge by L. Wardlaw Lamar, Nashville, for defendant.

WELLS, Judge.

Teachers in North Carolina are hired by local boards of education, upon the recommendation of their school superintendents. N.C.Gen.Stat. § 115C-299 (1983); see N.C.Gen.Stat. §§ 115C-35 to -48 (1983) (duties of boards); N.C.Gen.Stat. §§ 115C-271 to -278 (1983) (superintendents). Non-renewal of contracts of probationary teachers is governed by N.C.Gen.Stat. § 115C-325(m)(2) (1983), which provides:

The board, upon recommendation of the superintendent, may refuse to renew the contract of any probationary teacher or to reemploy any teacher who is not under contract for any cause it deems sufficient: Provided, however, that the cause may not be arbitrary, capricious, discriminatory or for personal or political reasons.

No statutory right of appeal exists. G.S. § 115C-325(n). Probationary teachers who contend non-renewal was for a prohibited reason therefore must sue in the appropriate court. Sigmon v. Poe, 528 F.2d 311 (4th Cir.1975) (per curiam). Plaintiffs did so, alleging that the Board's action was arbitrary and capricious; summary judgment was rendered against them.

A party moving for summary judgment may prevail if it meets the burden of proving an essential element of the opposing party's claim is nonexistent or by conclusively establishing a complete defense. Lowe v. Bradford, 305 N.C. 366, 289 S.E.2d 363 (1982); Ballinger v. Secretary of Revenue, 59 N.C.App. 508, 296 S.E.2d 836 (1982), cert. denied, 307 N.C. 576, 299 S.E.2d 645 (1983). If the moving party forecasts evidence which would entitle it to judgment as a matter of law, the non-moving party then must come forward with a forecast of evidence showing that a genuine issue of material fact exists for trial. Hotel Corp. v. Taylor, 301 N.C. 200, 271 S.E.2d 54 (1980). The non-movant may not rely on conclusory allegations unsupported by facts. Lowe v. Bradford, supra. The evidence must be considered in the light most favorable to the non-movant with all reasonable inferences therefrom. Rose v. Guilford Co., 60 N.C.App. 170, 298 S.E.2d 200 (1982).

The Board's position is that it established a complete defense as a matter of law. It relies on our opinion in Hasty v. Bellamy, 44 N.C.App. 15, 260 S.E.2d 135 (1979). There a probationary teacher's principal tried to get him to sign a letter which appeared to waive certain employment rights. When the teacher refused, the principal and the school superintendent recommended that the board not renew his contract. After non-renewal, the teacher sued and his complaint was dismissed; on appeal, we reversed:

From plaintiff's complaint, two possibilities appear: (1) the board failed to renew plaintiff's contract because he refused to sign the letter of condition, or (2) the board failed to renew plaintiff's contract because the principal and superintendent recommended that he not be rehired. If the latter were proved to be the case, no violation of ... [G.S. § 115C-325(m)(2) ] would be established, since the superintendent is entitled to make such recommendations, see ... [G.S. § 115C-299; G.S. § 115C-325(m)(2) ]; Taylor v. Crisp, 286 N.C. 488, 212 S.E.2d 381 (1975), and we do not find that the failure to renew plaintiff's contract based on the principal's recommendation would make the board's action arbitrary, capricious, or for personal reasons, in violation of the statute. If the plaintiff were able to prove (1) above, however, we would reach a different result.

Hasty v. Bellamy, supra, [Emphasis added]. ¹ We went on to hold that plaintiff could pursue his claim that the failure to renew, if based solely on his refusal to sign the letter, was arbitrary and capricious. Id.

Relying on the emphasized language, defendant Board argues steadfastly that the superintendent and principal recommended that plaintiffs' contracts not be renewed, and that its action therefore was not arbitrary and capricious as a matter of law. The Board introduced minutes of the meeting at which the recommendation was made, with an attached list of teachers not offered renewal contracts. Plaintiffs were the only two teachers named thereon. The Board also introduced an uncontradicted affidavit from the superintendent that he had recommended plaintiffs not be reemployed. Defendant contends that applying Hasty literally, this evidence sufficed to establish a complete defense to plaintiff's action.

It appears appropriate for us to clarify our opinion in Hasty. Obviously, we did not intend to take the position in Hasty that an arbitrary or capricious recommendation by a principal or superintendent would or could provide a school board with a valid basis for not rehiring a non-tenured teacher. To do so would not only unfairly insulate boards of education in such circumstances, but would invite arbitrary and capricious actions on the part of principals and superintendents, and would have the effect of rendering the prophylactic provisions of G.S. § 115C-325(m)(2) meaningless. We therefore modify it as discussed below.

It is elementary that a statute must be construed as a whole, giving effect if possible to every provision. Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980). A construction which will defeat or impair the object of a statute must be avoided if that can reasonably be done without violence to the legislative language. In re Hardy, 294 N.C. 90, 240 S.E.2d 367 (1978). We will not adopt a construction of a statute which would effectively render it meaningless. State v. Jones, 67 N.C.App. 377, 313 S.E.2d 808, cert. denied, --- N.C. ---, 315 S.E.2d 699 (1984).

The harsh effect of common law employee contract principles was demonstrated in Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971). There our supreme court held that non-renewal of a teacher's contract lay entirely in the discretion of the board of education, rejecting summarily the plaintiff teacher's contention that the reasons given by the board were inadequate. Essentially, boards could refuse to renew for any reason or no reason at all. That same year the General Assembly changed the common law rule. 1971 N.C.Sess.Laws, c. 883. ² The new law provided tenure for career teachers and listed the allowable reasons for their dismissal or demotion. And it contained the same language protecting probationary teachers now found at G.S. § 115C-325(m)(2). Clearly, the legislature intended to afford probationary teachers minimum protection against the arbitrary non-renewal permitted under the common law. The discretion of the boards with respect to probationary teachers remains very broad, of course, but the decision not to renew must have some non-arbitrary basis.

A school board may refuse to renew a probationary teacher's contract upon recommendation of the superintendent. That recommendation is only advisory, however; ultimate responsibility rests with the board. Taylor v. Crisp, supra. Applied literally, our decision in Hasty would allow the board to exercise its responsibility without regard to the limitations of G.S. § 115C-325(m)(2). As long as the superintendent actually recommended non-renewal, the board's action could never be arbitrary, even if the superintendent was simply relaying a recommendation based on no knowledge or based on personal ill-will. Such an interpretation effectively would render the proviso of G.S. § 115C-325(m)(2) meaningless, depriving probationary teachers of even the minimal legislative protection afforded thereby. It is therefore untenable.

Rather, we interpret G.S. § 115C-325(m)(2) to impose a duty on boards of education to determine the substantive bases for recommendations of non-renewal and to assure that non-renewal is not for a prohibited reason. The parties advance various elaborate tests for determining what is "arbitrary" or "capricious." Rather than further muddy the waters, we simply follow the general rule that "arbitrary" or "capricious" reasons are those without any rational basis in the record, such that a decision made thereon amounts to an abuse of discretion. Black's Law Dictionary 96, 192 (5th ed. 1979); Comr. of Insurance v. Rate Bureau, 300 N.C. 381, 269 S.E.2d 547, reh. denied, 301 N.C. 107, 273 S.E.2d 300 (1980); In re Housing Authority, 235 N.C. 463, 70 S.E.2d 500 (1952). We hold that the advisory nature of the superintendent's recommendation to not rehire a non-tenured teacher places the responsibility on the Board to ascertain the rational basis for the recommendation before acting upon it.

The framework in which the recommendations are made supports this holding. Particularly in a larger school system, principals are charged with daily supervision and will be best acquainted with teachers' abilities and deficiencies. Superintendent's recommendations will ordinarily depend on the principals'. In the great majority of cases, the lay members of the board will undoubtedly follow the recommendation of these professionals. By statute, the superintendent is employed by the board and is responsible for...