Ferry v. Bd. of Educ. of the Jefferson City Pub. Sch. Dist.
| Decision Date | 11 January 2022 |
| Docket Number | SC 98959 |
| Citation | 641 S.W.3d 203 |
| Parties | Tammy FERRY, Respondent, v. The BOARD OF EDUCATION OF the JEFFERSON CITY PUBLIC SCHOOL DISTRICT, Appellant. |
| Court | Missouri Supreme Court |
The board was represented by Duane A. Martin, J. Drew Marriott and Ryan VanFleet of EdCounsel LLC in Independence, (816) 252-9000.
Ferry was represented by David J. Moen of David J. Moen PC in Jefferson City, (573) 636-5997; Dennis E. Egan of The Popham Law Firm PC in Kansas City, (816) 221-2288; and Roger G. Brown, an attorney in Jefferson City, (573) 634-8501.
The Board of Education of the Jefferson City Public School District appeals a judgment reversing its decision to terminate Tammy Ferry's contract with the District after she transferred confidential student information from the District's Google for Education account to her personal Google account. Because Ms. Ferry effectuated a prohibited disclosure from the District to herself and violated a board policy and administrative procedure when she accessed and transferred confidential student information without a legitimate educational interest, the Board had the authority to terminate her contract. Therefore, the circuit court's judgment is vacated and, pursuant to Rule 84.14, the Board's decision is affirmed.
Ms. Ferry was a tenured, state-certified teacher who served as an instructional technology coordinator with the District for 11 years. On January 28, 2019, Ms. Ferry began copying the Google Drive assigned to her on the District's domain to her personal Google account. Although Ms. Ferry claims she intended to copy and transfer only her work files, the Google Drive assigned to her contained files provided and created by other District personnel, and some of her files and the files provided and created by others included confidential student information.
As Ms. Ferry transferred District files, District personnel started receiving notices indicating that their files were last modified by Ms. Ferry. Upon further review, the District learned Ms. Ferry was in the process of copying and transferring thousands of the District's files to her private account without permission or authorization and that some of these files contained confidential student information. Consequently, the District stopped the transfer to Ms. Ferry's account and placed her on administrative leave pending an investigation.
On March 15, 2019, counsel for the District met with Ms. Ferry and her counsel to interview her about the alleged data breach. During the interview, Ms. Ferry admitted she transferred the District's files to her personal Google account. She explained she did so on the advice of counsel to preserve them for use in a discrimination suit she had filed against the District in 2017.1 The District's investigation ultimately resulted in the Board issuing a statement of charges against Ms. Ferry that alleged she violated three Board policies by virtue of her transfer of confidential information to her personal Google account and her failure to follow administrative directives to return school equipment, not to return to the school's premises, and not to communicate with school personnel.
The Board conducted a contested case hearing in July 2019 and found Ms. Ferry disclosed confidential student information in violation of board policy "when she permitted the release and transfer of personally identifiable student information contained in the education records of the District to her personal Google account, when she was not the party that provided or created the records in question." It also found she violated board policies and procedure "when she failed to keep student records confidential in accordance with the law, and accessed the District's files containing confidential student information as a school official without a legitimate educational interest to transfer them to her personal Google account." Based on those findings, the Board terminated Ms. Ferry's contract with the District.
Ms. Ferry filed a notice of appeal with the Board and a petition for judicial review in the circuit court. The circuit court found Ms. Ferry had not "disclosed" confidential student information, as that term is defined in the Family Educational Rights and Privacy Act of 1974 ("FERPA"), 20 U.S.C section 1232g ; reversed the Board's decision; and ordered the Board to restore Ms. Ferry to permanent teacher status and to provide her full compensation for the period between her discharge and reinstatement. The Board appealed the circuit court's judgment, and this Court granted transfer after an opinion by the court of appeals. Mo. Const. art. V, sec. 10.
On appeal, this Court reviews the Board's decision, not the circuit court's judgment. Mo. Real Estate Appraisers Comm'n v. Funk , 492 S.W.3d 586, 592 (Mo. banc 2016). Article V, section 18 of the Missouri Constitution requires that judicial review of an administrative agency's decision include a determination of whether the agency decision is "authorized by law" and "supported by competent and substantial evidence upon the whole record."2 Nothing in article V, section 18 requires a reviewing court to view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the agency decision. See, e.g. , Spire Mo., Inc. v. Pub. Serv. Comm'n , 618 S.W.3d 225, 236 n.8 (Mo. banc 2021) ; Albanna v. State Bd. of Registration for the Healing Arts , 293 S.W.3d 423, 428 (Mo. banc 2009) ; Lagud v. Kan. City Bd. of Police Comm'rs , 136 S.W.3d 786, 791 (Mo. banc 2004) ; Hampton v. Big Boy Steel Erection , 121 S.W.3d 220, 223 (Mo. banc 2003). Rather, "a court reviewing factual findings by an administrative agency must consider all of the evidence that was before the agency and all of the reasonable inferences that may be drawn from that evidence, including the evidence and inferences that the agency rejected in making its findings. " Seck v. Mo. Dep't of Transp. , 434 S.W.3d 74, 79 (Mo. banc 2014) (emphasis added). A reviewing court cannot, however, "substitute its judgment for that of administrative agency being reviewed," id. , make findings or conclusions in the first instance, or ascribe to the agency findings and conclusions it did not make," Treasurer of State v. Parker , 622 S.W.3d 178, 183 (Mo. banc 2021). A reviewing court "is only to review the findings and decisions made by the [agency]." Id.
In reviewing an agency's findings of fact, this Court defers to the agency's credibility determinations and the weight given to conflicting evidence. O'Brien v. Dep't of Pub. Safety , 589 S.W.3d 560, 565 (Mo. banc 2019). This Court will defer to an agency's factual findings so long as there is sufficient competent and substantial evidence in the record to support them, Johme v. St. John's Mercy Healthcare , 366 S.W.3d 504, 509 (Mo. banc 2012), and they are not "contrary to the overwhelming weight of the evidence," Wright-Jones v. Mo. Ethics Comm'n , 544 S.W.3d 177, 179 (Mo. banc 2018).
By contrast, questions of law are not committed to the discretion of administrative agencies, nor dependent on their expertise, but are questions "for the courts ultimately to resolve on judicial review when called upon to do so." Bird v. Mo. Bd. of Architects, Pro. Eng'rs, Pro. Land Surveyors & Landscape Architects , 259 S.W.3d 516, 519 (Mo. banc 2008). This Court reviews questions of law, including questions of statutory interpretation, de novo. Parker , 622 S.W.3d at 180-81.
Ms. Ferry claims the Board erred in terminating her employment for violating FERPA and board policy by unlawfully disclosing confidential information to herself. Ms. Ferry contends the Board's decision was not authorized by law because her conduct did not constitute a disclosure, as defined in FERPA, in that she did not release confidential student information to any third person. She also claims that, even assuming she violated board policy when she accessed and transferred confidential information, she did not do so willfully and persistently because no policy prohibited transfer of confidential student information to a personal account.
The Board's decision to terminate Ms. Ferry's contract with the District was based on the Teacher Tenure Act, sections 168.102 to 168.130.3 The Teacher Tenure Act authorizes the Board to terminate a permanent teacher's indefinite contract for "[w]illful or persistent violation of, or failure to obey, the school laws of the state or the published regulations of the board of education of the school district employing him [or her]." Section 168.114.1(4). The Board found Ms. Ferry violated board policy JO and administrative procedure JO-AP(1) and her violations of JO and JO-AP(1) constituted the violation of three other board policies, GBCB, EHB, and EHBC. Those board policies respectively govern staff conduct, technology usage, and data governance and security and effectively require compliance with JO and JO-AP(1).
FERPA governs the District's disclosure of confidential student information. Among other things, FERPA denies federal funding to "any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein ...) of students without the written consent of their parents to any individual, agency, or organization[.]" 20 U.S.C. section 1232g(b)(1). There are exceptions, however, and schools may release student education records without written consent to, among others, "school officials, including teachers within the educational institution or local educational agency, who have been determined by such agency or institution to have legitimate educational interests[.]" 20 U.S.C. section 1232g(b)(1)(A).
The federal regulations promulgated pursuant to 20 U.S.C. section 1232g utilize the concept of disclosure to further delineate when...
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...to determine whether the agency's decision was "authorized by law." See, e.g. , Ferry v. Bd. of Educ. of Jefferson City Pub. Sch. Dist. , 641 S.W.3d 203, 206 (Mo. banc 2022) ; Fischer v. Dir. of Revenue , 483 S.W.3d 858, 860 (Mo. banc 2016) ("In determining whether the decision is ‘authoriz......