Cooner v. Board of Educ., 210
| Decision Date | 04 November 1982 |
| Docket Number | No. 1,No. 210,CA-CIV,210,1 |
| Citation | 136 Ariz. 11,663 P.2d 1002 |
| Parties | , 11 Ed. Law Rep. 708 Dolores COONER, Plaintiff-Appellee, v. BOARD OF EDUCATION, Phoenix Union High School Districtof Maricopa County, Defendant-Appellant. 5501. |
| Court | Arizona Court of Appeals |
The school board in this case decided not to renew the teaching contract of a probationary teacher and complied with the requirements for taking such action required by the teacher tenure law. The case deals with whether the requirements of the Arizona open meeting law were followed by the school board in taking the action not to renew the contract. The opinion which follows holds that there was compliance with the open meeting law and discusses the interrelationship of the two statutory provisions.
A complete recitation of the facts and the trial court proceedings is frustrated by the incomplete appellate record before us. This is due in large part to the absence of a transcript of proceedings in the trial court. There is no agreed statement of facts or a narrative statement. We do have before us, however, the pleadings, trial court documents, exhibits, minute entries, memoranda of counsel, and the trial court judgment. We may derive a statement of facts from the pleadings, exhibits, minute entries, and the judgment, however, for purposes of review. Cubbison v. Cubbison, 45 Ariz. 14, 40 P.2d 86 (1935). The Arizona Supreme Court has held that in the absence of a reporter's transcript or an appropriate substitute, the reviewing court may consider matters raised on the face of the pleadings. Gibbs v. Basham, 53 Ariz. 357, 89 P.2d 630 (1939); Hall v. Bowman, 88 Ariz. 409, 357 P.2d 149 (1960). In considering this record in light of the issues presented, we conclude that a reporter's transcript is not essential for our decision as the facts upon which it is dependent are clearly uncontroverted.
Appellant Board of Education, Phoenix Union High School District No. 210 of Maricopa County (hereafter referred to as "the Board") met on or about April 5, 1979, in executive session and discussed reasons for the non-renewal of the teaching contract of appellee Dolores Cooner (hereafter referred to as "appellee"). Appellee was not given advance personal notice that her employment status would be discussed or considered in the executive session. Had she been given such notice, appellee would have demanded that the discussion take place in a public meeting. Thereafter, on April 10, 1979, the Board convened in a public meeting, at which, according to the minutes, the following occurred:
On motion by Mr. Tom and seconded by Mr. Hagadorn, the Board did not renew the teaching contract for Ms. Dolores Cooner beginning with the 1979-80 school year, and authorized the Personnel Office to send a letter to Ms. Cooner, delineating the reasons for nonrenewal of her contract as follows
1. Recurring instances in which Ms. Cooner has left her class without the supervision of a certificated person for various periods of time and without making the necessary arrangements for someone else to supervise the class.
2. Unable to develop a satisfactory working relationship within the department.
On or about April 11, 1979, appellee received written notice from the Phoenix Union High School District that her contract would not be renewed for the 1979-80 school year.
Contending that the action taken by the Board was illegal, appellee demanded that a teaching contract for the school year be issued to her, but the school district refused to do so.
Appellee thereafter filed a civil complaint in the Maricopa County Superior Court pursuant to the Rules of Procedure for Special actions, the Uniform Declaratory Judgments Act, A.R.S. § 12-1831 et seq., A.R.S. § 15-252 (teacher tenure law), and A.R.S. § 38-431 et seq., (open meeting law). After an evidentiary hearing, oral argument to the court, and the submission of legal memoranda, the court entered a judgment on June 12, 1980, in favor of appellee. 1 The court found "the [Board] violated the Arizona Open Meetings Law by their failure to give prior notification to the plaintiff that her employment status would be discussed in executive session by the Board of Education."
On appeal, the Board raises the following issues:
I
II
DID THE SUPERIOR COURT JUDGE ERR IN ORDERING THE APPELLANT TO HOLD EITHER A DUE PROCESS HEARING OR ISSUE A CONTRACT AS THE TEACHER WAS AFFORDED ALL OF HER RIGHTS AS A PROBATIONARY TEACHER UNDER A.R.S. § 15-252 AND DO THE PROVISIONS OF A.R.S. § 15-252 TAKE PRECEDENCE OVER THE PROVISIONS OF A.R.S. § 38-431 et seq.
III
IV
V
In response, appellee presents the following arguments:
I. Arizona's Open Meetings Law, by implication, requires a governing board to give advance notice to an employee of its intent to discuss or consider that employee's status in executive session ....
A. The statute specifically grants an employee the right to demand that any discussion or consideration of his employment status be held during a public school board meeting rather than in executive session....
B. An employee cannot reasonably or effectively exercise his statutory right to demand that discussion of his employment status take place in a public meeting unless the board gives advance notice to him of its intent to hold such discussion in executive session....
C. The public is afforded an opportunity of assessing a governing board's performance, and the statute's legislative purpose is furthered thereby, when a public employee exercises his right to demand a public discussion of his employment status....
II. The Superior Court's order to the defendants-appellants to either grant a due process hearing or to reinstate the teacher with full rights and back pay was a grant of equitable relief appropriate to the circumstances....
A. The Superior Court properly found that the school board's failure to comply with the terms of the Open Meetings Law placed the teacher in a position of a continuing teacher.....
B. The school board's public meeting of April 10, 1979 did not "cure" the Open Meetings Law violation occurring at the April 5, 1979 executive session....
C. The Superior Court, as the trier of fact, made findings as to the circumstances in this matter and granted appropriate equitable relief....
In the discussion which follows, we address ourselves only to those issues necessary for disposition of the appeal.
There is no issue in this case concerning the meaning or application of the teacher tenure law as such. Appellee made no contention in the trial court and makes none here that the provisions thereof were not strictly followed when the Board acted not to renew the appellee's teaching contract. Her contentions are based upon the effect imposed thereon by the open meeting law.
PROBATIONARY TEACHERS UNDER THE TEACHER TENURE LAW A.R.S. § 15-251 ET SEQ. 2
It is necessary, first, to discuss the teacher tenure law as it applies to appellee. A probationary teacher is a certified teacher who is employed under contract by a school district. A.R.S. § 15-251(A)(3). A probationary teacher may become a continuing teacher with tenure if the teaching contract is renewed for a fourth consecutive year of such employment in the school district. A.R.S. § 15-251(A)(2). The school board must offer a contract for the forthcoming year to a probationary teacher unless on or before April 15 notice is given of the board's intention not to renew the contract. A.R.S. § 15-252(A); Peck v. Board of Education, 126 Ariz. 113, 612 P.2d 1076 (App.1980). The notice must be delivered personally to the teacher or sent by registered or certified mail and it must incorporate a statement of reasons for not reemploying the teacher. A.R.S. § 15-252(B). A probationary teacher whose contract has not been renewed is not entitled to a hearing as is a continuing teacher. Johnson v. Board of Education, 101 Ariz. 268, 419 P.2d 52 (1966); Rottenberg v. Cartwright School District, 22 Ariz.App. 473, 528 P.2d 859 (1974). Unless the reason given for the action of the board in deciding not to renew a contract is so unreasonable, arbitrary and capricious and about which reasonable men would not differ, the court will not review the action of the board in a court proceeding. Chesley v. Jones, 81 Ariz. 1, 299 P.2d 179 (1956); Rottenberg v. Cartwright School District, supra.
THE OPEN MEETING LAW A.R.S. § 38-431 ET SEQ.
The open meeting law, A.R.S. § 38-431 et seq., was enacted in 1974, although it was preceded in 1962 by a statute declaring that it was the public policy of the state that proceedings of government bodies be conducted openly. Laws 1962, Ch. 138, § 1. It is, nevertheless, correct to say that in substance the teacher tenure law long...
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