Bogart v. Unified Sch. Dist. No. 298 of Lincoln Cty.

• Decision Date: 17 May 1977
• Docket Number: Civ. A. No. 74-178-C6.
• Parties: David BOGART, Plaintiff, v. UNIFIED SCHOOL DISTRICT NO. 298 OF LINCOLN COUNTY, KANSAS, et al., Defendants.
• Court: U.S. District Court — District of Kansas

432 F. Supp. 895

David BOGART, Plaintiff, v. UNIFIED SCHOOL DISTRICT NO. 298 OF LINCOLN COUNTY, KANSAS, et al., Defendants.

Civ. A. No. 74-178-C6.

United States District Court, D. Kansas.

May 17, 1977.

COPYRIGHT MATERIAL OMITTED

Jim L. Lawing, Wichita, Kan., Philip R. Herzig, Salina, Kan., for plaintiff.

Daniel C. Bachmann, Wichita, Kan., for defendants.

MEMORANDUM AND ORDER

THEIS, District Judge.

This action arises under 42 U.S.C. § 1983, and the same was tried to the Court on February 17, 1977. Pursuant to such trial the Court has made certain Findings of Fact, as set out below:

1. For seven years prior to the 1973-1974 school year plaintiff Bogart taught high school industrial arts, plus an occasional chemistry class for Unified School District No. 298 (hereinafter referred to as "USD 298"). During this time plaintiff's teaching performance was evaluated by the North Central Association and Kansas State Department of Education, and by the high school principal under whom plaintiff worked for six years. Both evaluations found Bogart to be a well-qualified instructor with excellent student rapport.

2. On July 29, 1973, plaintiff's son was arrested for drug violations, a search warrant was issued by the state against the home of plaintiff and his son, and certain incidents occurred which culminated in a charge of possession of marijuana being lodged against plaintiff by the County Attorney of Lincoln County, Kansas, on August 3, 1973.

3. On August 6, 1973, the Board of USD 298 held its regularly scheduled meeting. Minutes of the meeting disclosed "after a lengthy discussion period, Frank Wallace made a motion that David Bogart be suspended from his status as an active member of the faculty of USD 298 pending the determination of the action filed against him in the Lincoln County Court. The State of Kansas is plaintiff and David Bogart is defendant, which cause is set for trial on August 21, 1973. Motion was seconded by Jay Cromwell and carried unanimously."

4. On August 8, 1973, plaintiff was informed by letter that at a meeting of the Board of USD 298 on August 6, 1973, "it was voted by the board that you be immediately suspended from duty as an instructor in the district pending a decision of the board as to whether you should be discharged and your contract for the 1973-74 academic year cancelled because of conduct unbecoming an instructor." Plaintiff was not informed of the specific conduct for which the Board was considering his dismissal. He was told he could request a hearing at which he could be represented by counsel, present evidence, and call and examine witnesses.

5. By letter dated August 15, 1973, plaintiff, by his counsel, requested a hearing before members of the Board of USD 298.

6. On August 17, 1973, plaintiff and his counsel received notice of a hearing before the Board of USD 298 as to plaintiff's suspension, which hearing was scheduled for August 21, 1973.

7. At the hearing of August 21, 1973, plaintiff was present with his attorney, his son Scott, and his married daughter Becky Cole. Although plaintiff had not yet been informed by the Board as to the specific acts of misconduct of which he was accused, he was told by the Board's attorney during the hearing that the School Board had suspended plaintiff because of the criminal charge placed against him.

8. Plaintiff informed the Board of the events of July 29, 1973, as follows:

On the afternoon of Sunday, July 29, plaintiff had several guests at his home when his son, Scott, called from the Sheriff's office and told plaintiff he had just been arrested on a drug charge and the Sheriff had a search warrant for the house. Plaintiff asked his son if there was anything in the house and Scott answered, "Yes." Plaintiff said, "Where in the world is it?" Scott answered it was up in his room in a plastic bag in a paper sack and there was another sack or bag by the chair. This was the first plaintiff knew of such marijuana being in his home.

Bogart further stated his first thought was to protect his son. He went up to Scott's room, found the little plastic bag and threw it out the back door into the back yard. He then drove to the Sheriff's office in Lincoln. A short time later plaintiff, in his car, followed his son and the Sheriff back to plaintiff's home. The Sheriff told plaintiff, upon his query, that it wouldn't make any difference if he got the marijuana or not, but it would be the right thing to do to turn the marijuana over to him. Scott started to go into the house to get the marijuana and plaintiff told him it wasn't there. Plaintiff then picked up the marijuana in the back yard and gave it to the Sheriff.

Plaintiff further informed the Board he had discovered his son at home with a marijuana cigarette about a year before and they had had "quite a set to." He had believed from that time until this incident that Scott had quit using marijuana. Plaintiff stated he had considered trying to take the blame himself for the marijuana in order to protect his son, but had rejected the idea.

In response to questions by the Board's attorney, plaintiff told the Board he believed, and may have told the Sheriff or County Attorney, that adult habits of drinking beer and smoking cigarettes are probably as bad as smoking marijuana. He also stated his biggest contention against marijuana, which he had discussed with Scott, was that "although it may not be harmful in itself, it could lead to stronger drugs."

Plaintiff told the Board he did not believe his effectiveness as a teacher was impaired by the charges against him because the kids knew he did not smoke pot nor advocate its use. Plaintiff further stated he believed he would be completely exonerated of the criminal charge and had done nothing which could be construed as conduct unbecoming a teacher.

9. Minutes of the August 21, 1973, meeting of the Board of USD 298 state in part:

"This meeting was called at the request of David Bogart, recently suspended from contract for the 1973-74 school year pending final decision on action filed in Lincoln County Court with State of Kansas as plaintiff and David Bogart as defendant.

"Following the questioning Mr. Bogart made a statement to the board that he was not guilty of any charges filed against him and that he didn't believe the pending court hearing could have any affect (sic) on his teaching or relationship with the students and that the suspension be dropped and he be allowed to fulfill his contract.

"Frank Cole ask (sic) that he be excused from presiding over the meeting. Although he would try he felt it would be hard for him to be objective with the family involvement. Mr. Cole was excused and left the meeting room.

"After a lengthy discussion period Jay Cromwell made a motion that the suspension of David Bogart as a teacher in Lincoln High School be continued until after his trial in Lincoln County District Court at which time a final decision of the board will be made. Motion was seconded by Bob Hamilton and carried unanimously with the six board members all voting yea."

10. By letter dated August 22, 1973, plaintiff was informed that "it was the decision of the board to continue the suspension until after the trial in Lincoln County District Court at which time a final decision of the board will be made."

11. By letter dated September 6, 1973, plaintiff, by his attorney, informed the Board that his case could not be tried in District Court until December 14, 1973, and again demanded immediate reinstatement.

12. On September 11, 1973, in a special meeting held without notice to plaintiff, the Board unanimously voted to reinstate Bogart pending trial.

13. On December 14, 1973, plaintiff testified at his trial on the charge of possession of marijuana. His testimony was essentially the same as that given before the Board on August 21, 1973, although he went into greater detail at the trial. Details given by plaintiff at his criminal trial which were not stated earlier before the Board were:

Plaintiff told the Court he had company at his house the afternoon his son called. His daughter answered the phone and called plaintiff to the phone whereupon Scott told his father of his arrest, the search warrant, and the marijuana in the house. Upon hanging up the telephone, plaintiff went upstairs, found the marijuana, and "took it out into the back yard and put it behind a tree."

Plaintiff also stated that he was concerned both about having people search in his house while his friends were there, and about protecting his son when he initially removed the marijuana from the house.

14. Sheriff Panzer, who testified against plaintiff at the December 14, 1973, trial, related essentially the same facts and conversations as those to which plaintiff testified both at trial and at the August 21 Board meeting.

15. On December 14, 1973, at the conclusion of the evidence, the jury found plaintiff Bogart guilty of possession of marijuana.

16. On January 7, 1974, the regular meeting of the Board of USD 298 was held without notice to plaintiff that his dismissal was a topic to be considered. The minutes reflect:

"After a lengthy discussion on the trial of David Bogart in which he was found guilty of the possession of marijuana by a jury of twelve, Jay Cromwell made a motion that David Bogart be dismissed from his contract on the basis of conduct unbecoming a teacher."

All members voted "yes" excepting Frank Cole, who abstained.

17. By letter dated January 8, 1974, plaintiff was informed that the Board had voted to terminate his contract effective January 11, 1974, "for conduct unbecoming an instructor, which conduct resulted in your conviction in the Lincoln County District Court of the offense of possession of marijuana."

18. By letter dated January 10, 1974, plaintiff, through his attorney, informed the Board of his pending Motion for New Trial and Motion to Set Aside the Verdict of the Jury. He also stated his intent to appeal his case to...