Durfey v. Board of Ed. of Wayne County School Dist.

• Decision Date: 05 December 1979
• Docket Number: No. 16064,16064
• Parties: J. McLean DURFEY, Plaintiff and Appellant, v. BOARD OF EDUCATION OF the WAYNE COUNTY SCHOOL DISTRICT, Defendant and Respondent.
• Court: Utah Supreme Court

Page 480

604 P.2d 480

J. McLean DURFEY, Plaintiff and Appellant, v. BOARD OF EDUCATION OF the WAYNE COUNTY SCHOOL DISTRICT Defendant and Respondent.

No. 16064.

Supreme Court of Utah.

Dec. 5, 1979.

Michael T. McCoy, Salt Lake City, for plaintiff and appellant.

Dan S. Bushnell and R. Bruce Findlay of Kirton, McConkie, Boyer & Boyle, Salt Lake City, for defendant and respondent.

HALL, Justice:

Plaintiff appeals an adverse ruling by the district court which refused to reinstate him following his suspension or dismissal by his former employer (hereinafter the Board).

Plaintiff was employed by the Board in 1969, to work as a counselor at Wayne High School and Wayne Middle School. In 1975 he was elected president of the Wayne Education Association for the 1975-1976 school year. During contract negotiation and at the behest of the members of his association, in February, 1976, he wrote a letter to John Brinkerhoff (Superintendent of the Board) whereby he sought to arrange a special audit of the school district, allegedly to clear up certain accusations of misappropriation of school property. During the next several months, disputes arose as to who was the proper representative to conduct the audit. ¹ On June 10, 1976, appellant was informed by Brinkerhoff that his position of guidance counselor had been abolished as the result of decreased student enrollment, lack of funds and necessary staff reduction. ² On July 14, 1976, plaintiff and one Jack Walters of the Utah Education Association appeared before the Board to request a reconsideration, inasmuch as plaintiff was a "tenured" employee. Then on August 11, 1976, plaintiff and Walters again appeared before the Board, along with the Utah Education Association attorney for the area. The minutes of that meeting show that the issues involved in plaintiff's suspension and termination were thoroughly reviewed, including the budget deficit, the legal basis of the Board for terminating a tenured teacher, the possible alternative positions which may have been given plaintiff, the question whether the action of the Board conformed to its published policies, case law from other districts where litigation had occurred over the rights of tenured teachers, and a final request that the Board reverse its earlier decision.

The Board refused to act as requested and this suit was filed. At trial, the jury returned a special verdict, wherein it found the following: There was a reduction in the number of teachers made necessary because of decreased enrollment, continuance of a particular service, or the shortage of anticipated revenue after the budget had been adopted; plaintiff was terminated for one or more of the preceding reasons; plaintiff's competence or his activities as a President of the Wayne County Education Association or membership in the Utah Education Association or his correspondence about a special audit was not a motivating factor in the decision to terminate him; even if there had been improper motive in his termination, plaintiff would have been terminated in any event for the reasons of decreased student enrollment, discontinuance of particular service, or shortage of anticipated revenue; and the amount of money which would be required to put plaintiff in the same financial position he would have been in absent his termination was $14,000. Upon the entry of judgment on the jury verdict, plaintiff appealed.

The first of plaintiff's contentions we will address on appeal is that there was insufficient evidence for the jury to find that plaintiff's dismissal was based on budgetary considerations. The jury verdict is a factual matter which should be affirmed if believable and admissible evidence will support it. ³ The evidence adduced at trial included the following: There were exhibits and testimony which showed that the enrollment in the district had been declining for several years. ⁴ The Board was concerned about this problem as early as 1974 when it inquired as to the feasibility of eliminating the counseling program and assigning its duties to other persons already employed as academic teachers. ⁵ In 1975 Brinkerhoff wrote to advise plaintiff that the Board was considering terminating the counseling program and made the following recommendation:

We have this year some vacancies in at least three of our schools. May I suggest that you consider which of the available openings would be suitable to you.

The first action taken by the Board in the spring of 1976 to economize was a proposal to the negotiating committee of the local education association that the teachers of the district reduce their demand for salary increases in order to maintain the full staff intact. The teachers were informed that if their wage demands were met by the district that it would be necessary to release some teachers. The teachers insisted that they wanted a raise regardless of the impact it might have upon the number of teachers employed, ⁶ and the Board was required to consider other alternatives to reduce its overall expenditures for the coming year. The Board directed Brinkerhoff to prepare and present a proposal for resolving the budget problems, which he did. At the Board meeting on June 9, 1976, the Board passed the following resolution:

A motion to reduce the professional staff in the District in accordance with the Superintendent's recommendations made by Mr. Devon Nelson, seconded by Mr. Wells Mulford and passed unanimously. The Superintendent's recommendations were to reduce the special education teachers at the Loa Elementary School to one half-day contract and to discontinue the guidance counselor position for Wayne High School and Wayne Middle School.

As a result of this Board action Brinkerhoff sent a letter to plaintiff, dated June 10, 1976, which included the following language:

It is a most unpleasant duty for me to inform you of the action which was taken by the Board of Education during its June regular meeting. After considerable deliberation the Board voted to discontinue the guidance counselor position. This action was made necessary due to our continuing student enrollment decline. . . . It is with a great deal of regret that the Board finds itself in the position where staff reduction is necessary. The economics facing public education is forcing staff reduction in many districts and in some a closure of entire schools. The creation of the middle school and normal attrition have delayed staff reduction in this District up to this time.

There was abundant, competent evidence adduced at trial for the jury to conclude that plaintiff was terminated because of the economic realities of decreased student enrollment.

Plaintiff's next contention is that the general dismissal procedure articulated in the Utah Orderly School Termination Procedures Act ⁷ requires notice and hearing for budgetary reasons which procedure was not complied with in the instant case. After setting forth the general procedure to be followed in dismissal of a school employee, the Act provides as follows:

Nothing in this act shall be construed to preclude staff reduction when necessary to decrease the number of teachers because of decreased student enrollments in the district, because of the discontinuance of a particular service, because of the shortage of anticipated revenue after the budget has been adopted, or because of school consolidations. ⁸ (Emphasis added.)

This language is a clear exception from the other provisions of the Act. ⁹ There is nothing in any other section of the Act which would reasonably imply that the procedural safeguards found elsewhere in the Act apply whenever the termination is for the budgetary concerns indicated. There is, therefore, no ambiguity present. It is our duty to give effect if such can be reasonably done to every word, clause, and sentence of a legislative enactment. ¹⁰ We hold that the statutory procedure for general termination ¹¹ therefore does not apply wherever it can be demonstrated that the termination is "necessary to decrease the number of teachers because of decreased student enrollments in the district, because of discontinuance of a particular service, because of the shortage of anticipated revenue after the budget has been adopted, or because of school consolidations." ¹² As a factual matter, the jury found that this was the reason for plaintiff's termination and the procedural safeguards of the Act therefore do not apply.

This is not to suggest however, that a person's basic constitutional rights to due process are forfeited in such a case. ¹³ The United States Supreme Court has held that a person may acquire a property interest in an employment contract and such person may not be deprived of that property interest without a showing of sufficient "cause" under basic notions of due process. ¹⁴ It is our judgment that due...