Boss v. Fillmore County School Dist. No. 19

• Decision Date: 07 February 1997
• Docket Number: No. S-94-712,S-94-712
• Citation: 559 N.W.2d 448,251 Neb. 669
• Parties: , 116 Ed. Law Rep. 380, 12 IER Cases 864 Rodney BOSS, Appellant, v. FILLMORE COUNTY SCHOOL DISTRICT NO. 19, a political subdivision of the State of Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 448

559 N.W.2d 448

251 Neb. 669, 116 Ed. Law Rep. 380, 12 IER Cases 864

Rodney BOSS, Appellant, v. FILLMORE COUNTY SCHOOL DISTRICT NO. 19, a political subdivision of the State of Nebraska, Appellee.

No. S-94-712.

Supreme Court of Nebraska.

Feb. 7, 1997.

Syllabus by the Court

1. Schools and Schools Districts: Termination of Employment: Teacher Contracts: Evidence: Appeal and Error. The standard of review in a proceeding in error from an order of a school board terminating the contract of a tenured teacher is whether the school board acted within its jurisdiction and whether there is sufficient evidence as a matter of law to support its decision.

2. Schools and School Districts: Evidence. The evidence is sufficient as a matter of law if the school board could reasonably find the facts as it did on the basis of the testimony and exhibits contained in the record before it.

3. Evidence: Words and Phrases. Evidence is "substantial" or "sufficient as a matter of law," or constitutes "some competent evidence," if a judge could not, were the trial to a jury, direct a verdict.

4. Schools and School Districts: Termination of Employment: Teacher Contracts. Neb.Rev.Stat. § 79-12,110(1) (Reissue 1994) confers upon a school board the authority to cancel the contract of any certificated employee by a majority vote of its members.

5. Words and Phrases. Incompetency is defined as demonstrated deficiencies or shortcomings in knowledge of subject matter or administrative skills.

6. Termination of Employment: Evidence. Evidence that a particular duty was not competently performed on certain occasions, or evidence of an occasional neglect of some duty of performance, in itself, does not ordinarily establish incompetency or neglect of duty sufficient to constitute just cause for termination.

7. Termination of Employment. Unprofessional conduct must be conduct directly related to one's fitness to act in his or her professional capacity.

8. Schools and School Districts: Termination of Employment: Teacher Contracts. Insensitivity alone does not justify a finding of unprofessional conduct sufficient to justify termination of a school superintendent's contract.

9. Schools and School Districts: Termination of Employment. Errors committed by a superintendent in draft budget documents, where those errors are corrected in the final budget document, do not in and of themselves constitute incompetence or neglect of duty.

10. Statutes: Legislature: Intent. In construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.

11. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning. In addition, an appellate court will, if possible, try to avoid a construction which would lead to absurd, unconscionable, or unjust results.

Beverly Evans Grenier, of Scudder Law Firm, P.C., Lincoln, for appellant.

Daniel J. Alberts, of DeMars, Gordon, Olson, Recknor & Shively, Lincoln, for appellee.

WHITE, C.J., and CAPORALE, FAHRNBRUCH, LANPHIER, WRIGHT, CONNOLLY, and GERRARD, JJ.

WHITE, Chief Justice.

Fillmore County School District No. 19 (district) petitioned this court for further review of the decision of the Nebraska Court of Appeals which determined that the evidence was insufficient to support a finding that superintendent Rodney Boss engaged in unprofessional conduct, incompetency, and neglect of his duties, and that Boss was entitled to periodic evaluations twice during his first year of employment and at least once annually thereafter. See Boss v. Fillmore Cty. Sch. Dist. No. 19, 4 Neb.App. 624, 548 N.W.2d 1 (1996). We affirm.

On July 31, 1992, Boss entered into a 3-year employment contract with the district. The contract provided that Boss could be discharged "if he materially breaches any provision of this Contract or performs any action which substantially inhibits his ability to discharge his duties, including ... (a) incompetence ... (f) neglect of duty, (g) general neglect of the business of the District, [or] (h) unprofessional conduct...."

On July 30, 1993, Boss was notified that the school board (board) was considering cancellation of his contract due to his incompetence in managing the financial affairs of the district, his mishandling of various special education complaints such that complaints were subsequently filed against the district with the "Office of Civil Rights," and his unprofessional conduct in relation to staff, students, parents, and a board member. The alleged unprofessional conduct included violations of the district's sexual harassment policy (Policy GAAB).

On August 9, the board failed to hold a scheduled budget hearing, and consequently, Boss was without information as to certain budget items needed before completion of the budget documents for 1993-94. On Sunday August 15, the board president gave Boss oral direction as to some of the needed information. The next day, Monday, August 16, Boss began preparation of the budget notice for publication in the local newspaper, believing he had until Wednesday to complete this task; at 10 o'clock that Monday morning, Boss was directed to have this notice completed and published by noon that day. Boss met this deadline, but the notice contained an error which required republication.

On August 17, the board placed Boss on administrative leave, refused him entry to his office until after office hours, and prohibited Boss from contacting his staff. Despite these limitations, Boss delivered completed budget documents to the board on August 20, 1993, and additional documents to the board on the night of the budget hearing, August 23. The board did not act to adopt the budget at that hearing.

The hearing concerning the termination of Boss' contract convened on August 24 at 7:30 p.m. At this hearing, testimony was presented on several issues. Regarding errors made in the budget documents, the district's own expert, former district superintendent Don Pieper, testified that the majority of alleged errors committed by Boss occurred in draft budget documents, these errors were corrected of Boss' own accord in the finalized documents, there was only one "not real significant error" in the finalized documents, and sometimes changes had to be made in budget worksheets and draft documents. Boss testified that haste was a direct factor in the errors made in the budget documents and that he had had difficulty preparing these documents due to the board's own indecision.

Joe Reinhart, a superintendent for the neighboring Exeter school district, testified that there had been "instances when I transposed a number or something" and that at times he had difficulty understanding the instructions for preparing budget documents. One of Boss' witnesses, Marge Melroy--administrative assistant of the Phelps County superintendent of schools--stated that she regularly reviews budget documents filed by superintendents and must frequently call these superintendents and ask them to make changes on submitted documents.

Another issue involving Boss' alleged neglect of duty involved his failure to file a "Chapter 1" form on time. This failure, to which Boss admitted, cost the district $250 to $3,000, and the evidence indicated that this money would have been used to send teacher Julie Johnson to a Chapter 1 conference in Hawaii.

The hearing also involved allegations by certain parents that Boss neglected his duty by failing to address their complaints. One parent testified concerning an incident in which her child received a bruise at school. Due to Boss' failure to respond promptly or satisfactorily in this parent's opinion, she filed a complaint with the Office of Civil Rights. The parent stated that the matter was never resolved in any way by Boss. However, the record clearly indicates that Boss acted immediately to discuss the situation with the children and the parents, the parents gave Boss only one weekend to resolve the situation to their satisfaction before filing a complaint, the issue of discipline was primarily the principal's duty and not the superintendent's, and the parents received four responses by the principal in addition to Boss' actions regarding this complaint.

This same parent also complained that she was not allowed to view telephone records at the superintendent's office after having been given permission to do so at a board meeting. The record clearly indicates that Boss was not present at the office to give the staff permission to turn those records over to the parent the day she arrived to view the records; that the principal delayed providing her with the records in order to contact the school attorney; and that once the situation was clarified, both Boss and the principal made several efforts to allow the parent to view the records, all of which efforts were rebuffed.

Finally, the board heard testimony concerning Boss' allegedly unprofessional conduct. First, board member Elizabeth Long testified that she was told that Boss had made an unflattering and undisclosed remark about her at a staff meeting. Boss denied making this statement. Long also testified that prior to hearing of the alleged statement, "[Boss had] never been rude to me, nor me to him. And that's the crux of wherein lies our problem, his and mine. Because I feel that he always minimizes my concern."

The testimony regarding Boss' alleged unprofessional conduct included a charge that Boss violated the district's sexual harassment policy, Policy GAAB. The evidence consisted of allegations that Boss on occasion touched male and female employees on the knee or shoulder when speaking with them; that on one occasion he introduced teacher Julie Johnson as "our Julie" to another administrator who also employed a teacher named Julie; that at a conference with Johnson, he told a salesclerk in a store that ...