Brown v. Bedford School Bd.

• Decision Date: 07 July 1982
• Docket Number: No. 81-344,81-344
• Citation: 122 N.H. 627,448 A.2d 1375
• Parties: , 5 Ed. Law Rep. 1199 Virginia BROWN et al. v. BEDFORD SCHOOL BOARD et al.
• Court: New Hampshire Supreme Court

Page 1375

448 A.2d 1375

122 N.H. 627, 5 Ed. Law Rep. 1199

Virginia BROWN et al. v. BEDFORD SCHOOL BOARD et al.

No. 81-344.

Supreme Court of New Hampshire.

July 7, 1982.

Anne Richmond, Staff Atty., NEA, Concord, by brief and orally, for plaintiffs.

Wadleigh, Starr, Peters, Dunn & Kohls, Manchester (Alan Hall, Katherine M. Hanna, Manchester, on brief, and Eugene M. Van Loan, III, Manchester, on brief and orally), for defendants.

DOUGLAS, Justice.

This appeal is brought by two probationary teachers who were not rehired for teaching positions in the Bedford School District. They raise several issues: Whether they were entitled to receive a statement of reasons for their termination; whether they had a protected property interest in their employment; whether they were entitled to personal notice that their terminations would be discussed at a certain meeting of the Bedford School Board; and whether they had a "right to know" under RSA ch. 91-A that teacher nominations would be discussed at that meeting.

The plaintiffs, probationary employees in the Bedford School District, were employed pursuant to individual written contracts for the school year 1980-81. At a regularly scheduled school board meeting on March 9, 1981, an item on the agenda indicated that teacher nominations for the upcoming year would be considered. The defendants claim that they sent a copy of this agenda to the plaintiffs' representative, the president of the Bedford Teachers Association, in accordance with the plaintiffs' collective bargaining agreement. The plaintiffs were never personally notified that teacher nominations would be discussed. At the March 9 meeting, the board elected various teachers to probationary positions and continued certain tenured teachers. The two plaintiffs were not among those to be offered new contracts. See RSA 189:14-a.

Over a month after the plaintiffs were notified of nonrenewal, counsel for their exclusive bargaining representative, the Bedford Teachers Association, NHEA/NEA, asked the school board for a statement of reasons why the plaintiffs had not been rehired. The board responded: "It is the practice of the school board not to give reasons for the nonrenewal of teachers." In August, the plaintiffs filed a petition for a temporary injunction and a temporary restraining order which essentially sought the plaintiff's reinstatement. The Superior Court (Wyman, J.) denied temporary relief and this interlocutory appeal ensued.

The plaintiffs argue that they were entitled to a statement of reasons for nonrenewal. Tenured teachers--those who have been employed for three years or more--must be provided upon request with "reasons for failure to be renominated or reelected" and are permitted a hearing before the board. RSA 189:14-a (Supp.1981). As we explained in Petition of Gorham School Board, 121 N.H. 878, 880-81, 436 A.2d 74, 76 (1981), probationary teachers are not extended this statutory protection. It could, however, be bargained for in a collective bargaining agreement.

RSA 189:13 provides that no teacher, whether probationary or tenured, may be dismissed during the contract period "without having previously been notified of the cause of such dismissal" and provided a full and fair hearing. It is clear from the statutory framework, however, that the plaintiffs were not being "dismissed," see RSA 189:13, but were simply not being "renominated" or "re- elected." See RSA 189:14-a (Supp.1981). Accordingly, the procedural protections set forth in RSA 189:13 did not attach.

Even though RSA ch. 189 may not grant them a right to a statement of reasons for termination, the plaintiffs argue that they are entitled to such a statement on due process grounds because their employment is a protected property interest. The United States Supreme Court in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) addressed this argument stating that:

"To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it.... Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law--rules or understandings that secure certain benefits and that support claims of entitlement to those benefits."

Id. at 577, 92 S.Ct. at 2709.

The Supreme Court in Roth concluded that the untenured, probationary teacher in that case was not entitled to a hearing because he had not proven that his employment rose to the level of a constitutionally protected property interest.

"Thus, the terms of the respondent's appointment secured absolutely no interest in re-employment for the next year. They supported absolutely no possible claim of entitlement to re-employment. Nor, significantly, was there any state statute or University rule or policy that secured his interest in re-employment or that created any legitimate claim to it. In these circumstances, the respondent surely had an abstract concern in being rehired, but he did not have a property interest sufficient to require the University authorities to give him hearing when they declined to renew his contract of employment."

Id. at 578, 92 S.Ct. at 2710 (footnote omitted.)

In the context of public employment, we have repeatedly reaffirmed that, as a matter of State law, public employment without more, such as a commission of office, does not rise to the level of a protected property right. See Appeal of Parker, 121 N.H. 986, 988, 437 A.2d 283, 284 (1981); Colburn v. Personnel Commission, 118 N.H. 60, 64, 382 A.2d 907, 909 (1978).

This is not to say that probationary employees will never be afforded a right or remedy for wrongful termination of employment. Although a governmental unit has almost unfettered power to discharge a probationary employee, it may not do so arbitrarily, illegally, capriciously, or in bad faith. Appeal of William H. Oudens, 122 N.H. ---, 448 A.2d 1374 (decided this date); Appeal of Hildegard Tamm, 122 N.H. ---, 448 A.2d 1373 (decided this date); Appeal of Czeslaw Pawlus, 121 N.H. 273, 274, 428 A.2d 487, 488 (1981); Clark v. Manchester, 113 N.H. 270, at 275, 305 A.2d 668, at 672. In the instant case, however, the teachers were not discharged or "dismissed," but were merely not hired for a future year; therefore, the above test is inapplicable.

The plaintiffs next argue that they were entitled to individualized, personal notice of the agenda item relating to teacher nominations which was discussed at the March 9, 1982, school board meeting under RSA ch. 91-A, the "right-to-know" law. RSA 91-A:2 II (Supp.1981), sets forth all notice requirements for meetings of public agencies as follows:

"[A] notice of the time and place of each such meeting,...