Gauer v. KADOKA SCHOOL DIST. NO. 35-1, 22009.

• Decision Date: 19 June 2002
• Docket Number: No. 22009.,22009.
• Citation: 2002 SD 73,647 N.W.2d 727
• Parties: Joanne GAUER, Petitioner and Appellant, v. KADOKA SCHOOL DISTRICT NO. 35-1 and Kadoka Board of Education, Respondent and Appellee.
• Court: South Dakota Supreme Court

647 N.W.2d 727

2002 SD 73

Joanne GAUER, Petitioner and Appellant, v. KADOKA SCHOOL DISTRICT NO. 35-1 and Kadoka Board of Education, Respondent and Appellee.

No. 22009.

Supreme Court of South Dakota.

Argued March 25, 2002.

Decided June 19, 2002.

Ms. Anne Plooster, South Dakota Education Association, Pierre, for petitioner and appellant.

Mr. Thomas H. Harmon of Tieszen Law Office, Pierre, for respondent and appellee.

AMUNDSON, Justice.

[¶ 1.] Joanne Gauer's (Gauer) employment contract was not renewed by the Board of the Kadoka School District (Board). Gauer appealed the Board's decision, and the circuit court affirmed the Board's decision for nonrenewal on appeal. We, too, affirm.

FACTS

[¶ 2.] The Board hired Gauer as a teacher and counselor for the 1986-87 school year. Gauer remained in that position for fourteen years, and she received positive evaluations for her work at the school. In the spring of 2000, Ken Poppe (Poppe), school superintendent, received word from the South Dakota Department of Education that renewing Gauer's South Dakota Teaching Certificate was problematic due to a prior suspension of Gauer's teaching license in North Dakota. As a result, Poppe asked District Attorney Rodney Freeman to look into the matter. After some investigation, Freeman reported that Gauer's North Dakota license had been suspended in 1985 for sexual misconduct. Gauer had, on several occasions, engaged in sexual activity with a seventeen-year-old female who had just graduated from Ellendale High School where Gauer had been the guidance counselor. Gauer, who befriended her student through her position as counselor, was charged criminally for this conduct.¹ She pleaded guilty to Corruption of a Minor and resigned from her position as guidance counselor and teacher in Ellendale. Gauer received a deferred imposition of sentence and her North Dakota teaching certificate was suspended.

[¶ 3.] In April of 2000, Poppe informed the Board of these facts at a closed, special meeting and the Board voted not to renew Gauer's contract. Gauer was notified of its decision, and requested a hearing, which was held in June of 2000. Between April and June, Gauer was placed on leave with pay. During the hearing Gauer admitted that she never reported the incident in North Dakota to the Board and testified that she did not think she was obligated to do so.²

[¶ 4.] At Gauer's hearing, evidence of the sexual misconduct in North Dakota, as well as other insubordinate behavior was presented. The Board decided not to renew Gauer's contract based on "incidences of insubordination and display of lack of professional judgment as well as gross immorality involving the suspension of [her] teaching certificate in the State of North Dakota and [her] failure to disclose that fact to the Board of Education."³ Gauer appealed the Board's decision to circuit court, which affirmed. Gauer appeals, raising the following issues:

1) Whether the appropriate procedural steps were taken to satisfy Gauer's right to due process.

2) Whether the Board's decision to nonrenew Gauer's contract was arbitrary, capricious or an abuse of discretion.

STANDARD OF REVIEW

[¶ 5.] As stated in Collins v. Faith School District, 1998 SD 17, ¶ 13, 574 N.W.2d 889, 892, the standard of review for school board decisions, is as follows.

[T]he circuit court's review is not a trial de novo in the ordinary sense of the phrase. School boards are creatures of the [L]egislature and the judiciary may not interfere with their decisions unless the decision is made contrary to law. Therefore, "[a]s long as the school board is legitimately and legally exercising its administrative powers, the courts may not interfere with nor supplant the school board's decision making process." Only the legality of the decision, not the propriety of the decision, may be reviewed by the courts. The legality of a school board's decision is determined by a two-prong review. First, the procedural regularity of the decision is reviewed. This review includes whether the school board was vested with the authority to act and whether all procedural requirements required by law were followed. Second, the school board's decision is reviewed to determine whether the decision was arbitrary, capricious or an abuse of discretion. The circuit court may reverse or modify the school board's decision only "if substantial rights of appellant have been prejudiced because the board's findings, inferences, conclusions, or decisions are clearly erroneous in light of the entire evidence in the record, or are arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."

(internal citations omitted). "[W]e review facts under the clearly erroneous standard" and "questions of law are reviewed de novo." Wuest v. Winner Sch. Dist., 2000 SD 42, ¶ 12, 607 N.W.2d 912, 916.

DECISION

[¶ 6.] 1) Whether the appropriate procedural steps were taken to satisfy Gauer's right to due process.

[¶ 7.] Gauer argues that inappropriate information was distributed at the special meeting of the School Board in April, which was held to apprise the Board of Poppe's discoveries, thereby violating her due process rights. She alleges that the Board was inappropriately informed of the underlying reasons for Poppe's recommendation of nonrenewal of her contract, which, in turn, "tainted" the nonrenewal process. She argues the Board was given "excess information," which denied her the right to a fair and impartial hearing. Gauer believes that the Board should have been given only enough information to make a decision, and that the details of her past misconduct, such as the sex of the victim, served only to "flame the prejudice."

[¶ 8.] We have previously acknowledged that "executive or closed meetings of public boards may be held to discuss the qualifications, competence, performance, character or fitness of any public officer or employee or prospective public officer or employee." Id. at ¶ 23 (citing SDCL 1-25-2). Then, once the decision has been made to terminate a teacher, proper notice must be given to that teacher. See SDCL 13-43-6.2; Wuest, 2000 SD 42 at ¶¶ 24-25, 607 N.W.2d at 917. SDCL 13-43-6.2 requires that teachers be given "written notice of termination" and "a written statement of the reasons for the termination[.]" Furthermore, the teacher must be given the right to a hearing before the school board. "Due process requires notice and an opportunity to be heard." Wuest, 2000 SD 42 at ¶ 25, 607 N.W.2d at 917 (citing Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 1994, 32 L.Ed.2d 556, 569 (1972)). So long as the Board followed the appropriate prerequisites for termination as provided by state law, Gauer did not have a property interest in continued employment. Id.

[¶ 9.] With regard to the alleged excessive information, in Wuest, we acknowledged that the Board did not give specific underlying reasons for recommending a non-renewal during an executive session, "presumably" to avoid bias by board members. Id. at ¶ 24. We did not, however, place an outright ban on the use of underlying concerns for potential dismissal. In that case, we said "it was necessary to receive ... recommendations [not to renew a teacher's contract] in order for [the Board] ... to have a logical basis for its initial resolution and the notice it would serve on [the affected teacher]." Id. Clearly, a "fair tribunal" free from bias is a basic tenet of due process. Strain v. Rapid City Sch. Bd. for Rapid City Area Sch. Dist., 447 N.W.2d 332, 336 (S.D. 1989).⁴ We have said that to prove actual bias the record must establish "either actual bias on the part of the Board or the existence of circumstances that lead to the conclusion that an unacceptable risk of actual bias or prejudgment inhered in the Board's procedure." Riter v. Woonsocket Sch. Dist., 504 N.W.2d 572, 574 (S.D.1993).

[¶ 10.] Here, Gauer claims disclosing the gender of the victim at the executive session created bias, and that this bias is proven by board members' comments after the executive meeting. Gauer further argues that after the executive session, Jack Hanson, a Board member, made the comment that nonrenewal of Gauer's contract was "not a difficult decision." We, however, acknowledge that the underlying reason for reviewing Gauer's contract was necessarily reviewed by the Board at the executive session, and the underlying facts would have been analyzed whether the North Dakota incident involved a male or female victim. Although the impetus for concern is somewhat controversial, the Board had to review the facts in order to make the initial decision on whether to renew Gauer's contract. The requisite hearing and procedures essential for effective due process later followed the executive session. Additionally, the record demonstrates that Hanson, who allegedly made biased comments, was not even present at Gauer's hearing. Thus, nothing in the record establishes that comments made following the April meeting conclusively establish bias, or an "unacceptable risk of actual bias or prejudgment" by the Board. Id.

[¶ 11.] Moreover, we have acknowledged that the Board should be "afforded a strong presumption of good faith." Id. "[G]reat deference is given to the good faith determinations of school boards on decisions of whether to renew a teacher's contract." Wuest, 2000 SD 42 at ¶ 12, 607 N.W.2d at 915-16. "The burden is on the person challenging a board's decision to overcome the presumption that the board was acting in good faith." Nordhagen v. Hot Springs Sch. Dist., 474 N.W.2d 510, 513 (S.D.1991). Gauer has not carried her burden on this necessary showing of bias by the Board, which would sustain a violation of her due process rights.⁵

[¶ 12.] Further, we note that the Board did not attempt to deceive or withhold information from Gauer, which, if done, could have violated her due process rights. See Strain, 447 N.W.2d at 335-36 (holding board did...