Fuller v. North Kansas City School Dist., WD

• Decision Date: 29 September 1981
• Docket Number: No. WD,WD
• Citation: 629 S.W.2d 404
• Parties: 3 Ed. Law Rep. 446 Robert E. FULLER, Plaintiff-Appellant, v. NORTH KANSAS CITY SCHOOL DISTRICT, et al., Defendants-Respondents. 30752.
• Court: Missouri Court of Appeals

Page 404

629 S.W.2d 404

3 Ed. Law Rep. 446

Robert E. FULLER, Plaintiff-Appellant, v. NORTH KANSAS CITY SCHOOL DISTRICT, et al., Defendants-Respondents.

No. WD 30752.

Missouri Court of Appeals, Western District.

Sept. 29, 1981.

Motion for Rehearing and/or Transfer to Supreme Court

Overruled and Denied Nov.

17, 1981.

Application to Transfer Denied Jan. 18, 1982.

H. George Lafferty, Jr., Kansas City, for appellant.

Joseph A. Sherman, Jackson & Sherman, P. C., Kansas City, of counsel, for respondent.

Before KENNEDY, P. J., PRITCHARD, J., and SWOFFORD, Senior Judge.

BEN W. SWOFFORD, Senior Judge.

This case was tried upon the plaintiff's third amended petition. That party is hereinafter referred to as "Fuller". The suit was brought against the North Kansas City School District and its members of the Board of Education named individually and hereinafter referred to collectively as "District". The petition was cast in two counts. Count I in substance alleged that Fuller's contract of employment as an elementary school principal was wrongfully terminated by the District under § 168.102 et seq., RSMo.1969, and Count II in substance alleged that Fuller was thus deprived of his procedural due process constitutional rights in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States, and of his rights under Article I, Chapter 10 of the Constitution of Missouri. The answers filed to this third amended petition were in the nature of certain admissions, general denials and specific allegations that the District's refusal to reemploy Fuller was taken under the provisions of § 168.101 RSMo., was the proper procedure, and that Fuller had failed to avail himself of the exclusive and necessary administrative remedies as provided therein.

At the trial of this case Fuller offered extensive evidence both by witnesses and documentary in nature, and the District during Fuller's evidence offered certain documentary evidence. At the close of the evidence the trial court overruled Fuller's motion for a directed verdict, sustained the District's motion for a directed verdict (without comment or memorandum), discharged the jury and this appeal followed.

The parties to this action entered into a written stipulation as to uncontroverted facts, which is part of the record before this court. The facts covered therein are basic to the determination of this case and are thus summarized:

(1) Plaintiff, Robert E. Fuller, was first employed as a grade school principal by the North Kansas City School District in July of 1959; (2) he was last employed by the School District on the 9th day of June, 1975, and his employment was under written contract; (3) during this period of employment from 1959 through 1975 Fuller did not teach or otherwise instruct pupils but functioned as an elementary school principal; (4) written notice was given to Fuller entitled "Notice of Lack of Re-employment" of the decision of the District not to reemploy him, and was received by him on April 11, 1975, which notice was in conformity with § 168.101(3) RSMo., and which notice is part of this record; (5) Fuller did not at any time request of the District a statement of the reasons for the lack of reemployment, a procedure available to him under § 168.101(6), RSMo.; (6) Fuller did not at any time make a written request of the District for a hearing on the question of his lack of reemployment; (7) no such hearing was held by the District; and (8) it did not comply with § 168.116, RSMo., which provides for procedures to be followed by a school board, including notice in writing of termination, specifically stating the causes which may result in charges, notice of a hearing on any charges, and a written notice of the specific charges to be so heard as grounds alleged to exist for termination.

In addition to these stipulated facts certain undisputed facts appear in the testimony and from the exhibits offered and received in evidence.

Fuller was employed by the District since 1959 upon separate yearly contracts covering each academic year. His contract was a form used by the District designated as "Administrator-Supervisor-Employment Contract"; he was employed throughout the sixteen years as an elementary school principal at a salary level which was different than the schedule covering teachers' salaries; and throughout that period he did only administrative work, did not regularly teach or instruct students, and, so far as the record shows, had taken no additional studies or refresher courses in his specialty of Social Studies. However, the records disclose that on May 6, 1969, Fuller received from the State of Missouri lifetime certification as an elementary school teacher in Social Studies, grades 7 through 12. After he received notice from the District of lack of reemployment in April, 1975 he again applied for certification in July, 1975 and was certified for life as a teacher in Social Studies, grades Kindergarten through 6th Grade.

Conflict is encountered in this record in the area of Fuller's functions as principal and administrator of his school and his health. He offered evidence that he was an excellent, well-qualified elementary school principal, in good physical and mental health and performed his duties well. The District's records, on the contrary, disclosed that during his last two years as principal his performance was subject to much criticism, discussion, conferences (in which he participated) with his superiors, and corrective directions, including close, on the scene overt observations of the school's daily functions by administrative superiors of the District. Further, he had some health problems during this period, the exact nature of which were not disclosed, but including "pains in the chest" which on at least one occasion required his hospitalization and absence from job for approximately forty school days.

Following Fuller's failure to be reemployed he tried unsuccessfully to obtain employment with other school districts and in August, 1977 he retired and began drawing retirement benefits from the Missouri Public School Retirement System.

Because of this court's view as to the law applicable and controlling in this state of the record, further specific detail as to these areas of conflict need not be here accounted.

Fuller raises two points on this appeal. He asserts as his Point I that the court erred in directing a verdict for the District because he was entitled to a de jure tenure as a teacher under § 168.102 et seq., RSMo.1969. His Point II urges that this action of the trial court constituted error because his termination of employment by the District violated his constitutional rights to procedural due process. Both of these points are dependent upon Fuller's position that when he was not reemployed he was at least a permanent tenured teacher under the Teacher Tenure Act, §§ 168.102 to 168.130 (Laws 1969, p. 275, effective July 1, 1970) now § 168.102 et seq., RSMo.1978, and was entitled to the procedural safeguards as therein provided for tenured teachers under § 168.104. On the other hand, the District takes the position that under the undisputed facts in this case Fuller did not enjoy the position of a permanent tenured teacher, either de facto or de jure, but that his procedural due process rights were governed solely by the provisions of § 168.101, RSMo.1978 (Laws 1973) pertaining to staff administrative positions. The determinative question, therefore, is whether Section 168.101 or Section 168.104 is applicable to Fuller's status when he was not reemployed. Further refined, the issue is whether Fuller, clearly an elementary principal and not an active teacher, meets the definitions of Section 168.104 and was entitled to tenure as a "permanent teacher" upon the District's refusal to reemploy him as principal, and the concomitant procedural due process rights afforded by § 168.116, RSMo., to permanent tenured teachers who are terminated.

These statutory laws are all part of Chapter 168, RSMo.1978, governing "Personnel-Teachers and Others". An examination of these statutes discloses the fact that the "Teacher Tenure Act" was adopted by the General Assembly, Laws 1969, and was effective July 1, 1970, and specifically encompasses Sections 168.102 to 168.130, the sections relied upon by Fuller, whereas Section 168.101 upon which the District places its emphasis is not a statutory part of the "Teacher Tenure Act". However, as will appear, these statutory enactments, in some particulars, overlap and, of course, will be considered together in the resolution of this controversy. The pertinent provisions are:

"Section 168.101. Employment of certified teachers ineligible for permanent status under teacher tenure act ....

1. ... the school board or board of directors of a school district ... may ... contract and employ legally certified teachers, not employed as superintendent of the district and not eligible under Section 168.104 R.S.Mo.1969, to gain permanent status or tenure in the position held within the school system ..." (Emphasis supplied.)

Section 168.101 contains seven additional subsections mandating the details, procedures and terms of such permitted employment including detailed rights and procedures available to such employee if not reemployed which mandate formal complaint, specification of charges, hearing and other procedural due process protections only where the employee requests such "in writing ... within ten days after receipt of notice ... of lack of reemployment." (Sec. 168.101(6)). This statute was adopted Laws 1973, H.B. 151, Sec. 1, which, it is noted was subsequent to the enactment of the Teacher Tenure Act. No dispute exists that while Fuller was a certified teacher he was first employed by the District as a school principal and served in that capacity performing no functions as a teacher for sixteen years when he was not reemployed in any capacity. Fuller argues that,...