Butler v. Board of Educ., Unified School Dist. No. 440, Harvey County

• Decision Date: 03 March 1989
• Docket Number: No. 61961,61961
• Citation: 244 Kan. 458,769 P.2d 651
• Parties: , 52 Ed. Law Rep. 332 Kenneth O. BUTLER, Appellant, v. BOARD OF EDUCATION, UNIFIED SCHOOL DISTRICT NO. 440, HARVEY COUNTY, Kansas, Appellee.
• Court: Kansas Supreme Court

Page 651

769 P.2d 651

244 Kan. 458, 52 Ed. Law Rep. 332

Kenneth O. BUTLER, Appellant, v. BOARD OF EDUCATION, UNIFIED SCHOOL DISTRICT NO. 440, HARVEY COUNTY, Kansas, Appellee.

No. 61961.

Supreme Court of Kansas.

March 3, 1989.

Syllabus by the Court

1. A party perfecting an appeal pursuant to K.S.A.1988 Supp. 60-2101(d) has 30 days to give the subdivision or agency from whose order that party is appealing notice of the appeal. The aggrieved party thereafter has a reasonable time to perfect an appeal in the district court.

2. Under the facts of this case, the district court had jurisdiction because notice of appeal to counsel for the school board qualified as notice to the school board itself.

3. Pursuant to K.S.A. 72-5411, a school board is required to give notice of nonrenewal to a teacher by April 10 of each year. Absent a specific agreement otherwise, a school board is only required to consider a teacher's certification status prior to April 10 in deciding whether to renew the teacher's employment contract.

4. A school board's requirement of health as a component course in freshman physical education and its change of policy requiring the component to be taught by a teacher of the same sex as the students are changes of substance, not made for the purpose of replacing a tenured teacher with a nontenured teacher. The changes are thus within the school board's authority to act for the benefit of the students.

5. A school board is not required to grant a teacher assignments covered by a supplemental contract pursuant to K.S.A. 72-5412a in order to make up a full-time position for the teacher.

6. A tenured teacher has the right to be retained in the school system if it can be accomplished by assigning to the tenured teacher subjects taught by a nontenured teacher. Where the tenured teacher is not certified to teach all the subjects taught by the nontenured teacher, a balancing test applies where the rights of the students, the school board, and the tenured teacher are weighed. In the absence of bad faith, a school board is not required to rearrange teaching assignments to create several part-time positions in order to retain a tenured teacher.

David M. Schauner, of Kansas-Nat. Educ. Ass'n, Topeka, argued the cause and was on the briefs, for appellant.

David C. Burns, of Speir, Stroberg, Sizemore, Burns and Gillmore, P.A., Newton, argued the cause and was on the brief, for appellee.

Cynthia Lutz Kelly, of Kansas Ass'n of School Boards, Topeka, was on the brief amicus curiae.

HERD, Justice:

This is a teacher nonrenewal case. Kenneth Butler appeals from the trial court's order upholding the decision of the Board of Education (Board) of Unified School District No. 440 in Harvey County to nonrenew his employment contract.

Before discussing the case on the merits, let us examine the issue of whether the trial court had jurisdiction of this case. To do this we must review the procedural facts in detail. Pursuant to K.S.A. 72-5443(c), the Board mailed Butler notice of its final decision to nonrenew on May 20, 1987; he received the notice that day. On June 5, 1987, Butler's attorney mailed a notice of appeal to the district court to the Board's attorney, along with a praecipe that summons be issued to the clerk of the Board of Education. Notice of appeal was mailed to the clerk of the district court on June 8, 1987, along with a check covering the filing fee issued by the Kansas National Education Association (KNEA).

In July, Butler discovered the district court had been having problems with its mail delivery and had never received the notice of appeal. The check for the filing fee remained uncashed. Butler thereupon filed a copy of the original notice with the clerk of the district court on July 24, 1987.

On August 24, 1987, the Board filed a motion to affirm along with a waiver of the service of summons. Neither the district court nor the Board noted the filing date of the notice until it was discovered through the Court of Appeals' order to produce sufficient documents to determine jurisdiction.

The question presented is whether the district court lacked jurisdiction because the notice of appeal from the Board's decision was not filed with the district court within 33 days from the Board's mailing of the notice of nonrenewal to Butler.

The question of jurisdiction is a matter which can be raised at any time. If the district court lacked jurisdiction to review the Board's action, we also have no jurisdiction since there is nothing to review. In re K-Mart Corp., 232 Kan. 387, 654 P.2d 470 (1982). The right to appeal is statutory and the timely filing of the notice of appeal is jurisdictional. In re Lakeview Gardens, Inc., 227 Kan. 161, 605 P.2d 576 (1980); Giles v. Russell, 222 Kan. 629, 567 P.2d 845 (1977). Parties cannot convey jurisdiction on a court by failing to object to its lack of jurisdiction. Western Light & Telephone Co. v. Toland, 177 Kan. 194, 277 P.2d 584 (1954).

The filing of an untimely appeal is fatal save for a narrow range of exceptional circumstances. Legg v. Topeka Halfway House, Inc., 7 Kan.App.2d 669, 646 P.2d 1155, rev. denied 231 Kan. 800 (1982). These circumstances are not present in the case at bar. See Schroeder v. Urban, 242 Kan. 710, 750 P.2d 405 (1988) (good faith reliance on district court's improper extension of appeal time); In re Hambelton, 2 Kan.App.2d 68, 574 P.2d 982, rev. denied 225 Kan. 844 (1978) (excusable neglect based on failure to learn of judgment); Kittle v. Owen, 1 Kan.App.2d 748, 573 P.2d 1115 (1977) (papers tendered to judge, or last appeal day is holiday).

In Atkinson v. U.S.D. No. 383, 235 Kan. 793, 684 P.2d 424 (1984), we affirmed the Court of Appeals' decision at 9 Kan.App.2d 175, 675 P.2d 917 (1984), and held the time for a teacher to appeal a board's nonrenewal begins to run with the mailing by the Board of the notice required by it under K.S.A. 72-5443. We further held where the notice is submitted by mail, the three-day extension of time permitted by K.S.A.1988 Supp. 60-206(e) applies. Thus we held a teacher had 33 days in which to file a notice of appeal from the Board's order with the district court.

In Atkinson, we construed statutes since amended, but not in a manner relevant to the issues of the instant case. K.S.A. 72-5443(c) provides:

"If the members of the hearing committee are not unanimous in their opinion, the board shall consider the opinion, hear oral arguments or receive written briefs from the teacher and a representative of the board, and decide whether the contract of the teacher shall be renewed or terminated. The decision of the board under this subsection shall be submitted to the teacher not later than 30 days after the close of oral argument or submission of written briefs and such decision shall be final, subject to appeal to the district court as provided by K.S.A. 60-2101, and amendments thereto."

K.S.A.1988 Supp. 60-2101(d) provides in pertinent part:

"If no other means for perfecting such appeal is provided by law, it shall be sufficient for an aggrieved party to file a notice that such party is appealing from such judgment or order with such subdivision or agency within 30 days of its entry, and then causing true copies of all pertinent proceedings before such subdivision or agency to be prepared and filed with the clerk of the district court in the county in which such judgment or order was entered." (Emphasis supplied.)

Since no other means for perfecting an appeal of a school board's decision to nonrenew a teacher's contract is provided by law, K.S.A.1988 Supp. 60-2101(d) governs.

Butler argues the language of K.S.A.1988 Supp. 60-2101(d) does not require filing a notice of appeal with the court within 30 days, but only that he send a notice of appeal to the Board within 30 days. In LeCounte v. City of Wichita, 225 Kan. 48, 587 P.2d 310 (1978), we agreed with this construction of identical language in what was then K.S.A.1975 Supp. 60-2101(a). In LeCounte, we held an employee appealing the decision of a city retirement board had 30 days to give the board his notice of appeal:

"Thereafter, the aggrieved party has a reasonable time to have prepared and filed with the district court the full record of the proceedings had before the administrative board or officer. Following an adverse decision by an administrative board or officer, the aggrieved party must be allowed sufficient time to have prepared the record of proceedings before the administrative board or officer. The record often includes a transcript of oral testimony presented at the hearing. To require the aggrieved party to have prepared and completed within a period of 30 days the entire record before the administrative board is not a reasonable requirement. The language used in 60-2101(a) indicates a legislative intent that only the notice of appeal need be filed within the 30-day period following filing of the order of judgment of the administrative board and then the aggrieved party is allowed a reasonable time to perfect the appeal by causing the record to be prepared and filed with the clerk of the district court." 225 Kan. at 54-55, 587 P.2d 310.

We cited LeCounte in Atkinson in support of our decision to begin counting the 30 days for notice of appeal from the day the board gave notice to the appellant. As LeCounte addresses the issue in this case while Atkinson turned on when the counting began, LeCounte controls. The 49 days between Butler's notice of appeal to the board and his actual filing of the appeal with the district court is reasonable.

One further jurisdictional question is raised by the Board: Whether Butler's notice to the Board's counsel qualified as notice to the Board. Service to the Board's attorney resulted in actual notice to the Board, which, through its attorney, answered and waived service of summons. K.S.A.1988 Supp. 60-2101(d) does not require service of process; therefore, proper service is not the issue...