Heithoff v. Nebraska State Bd. of Educ., 87-276

• Decision Date: 21 October 1988
• Docket Number: No. 87-276,87-276
• Parties: , 49 Ed. Law Rep. 1282 Katherine HEITHOFF and Jean Luedtke, Appellees, v. NEBRASKA STATE BOARD OF EDUCATION, Appellant.
• Court: Nebraska Supreme Court

Page 681

430 N.W.2d 681

230 Neb. 209, 49 Ed. Law Rep. 1282

Katherine HEITHOFF and Jean Luedtke, Appellees, v. NEBRASKA STATE BOARD OF EDUCATION, Appellant.

No. 87-276.

Supreme Court of Nebraska.

Oct. 21, 1988.

Syllabus by the Court.

1. Administrative Law: Appeal and Error. In an appeal from a judgment pursuant to the Administrative Procedure Act, Neb.Rev.Stat. §§ 84-901 et seq. (Reissue 1981 & Cum.Supp.1986), the Supreme Court tries factual questions de novo on the record, which requires the Supreme Court to reach a conclusion independent of the trial court's findings.

2. Parties: Words and Phrases. An indispensable party is one who has an interest in the controversy to an extent that such party's absence from the proceedings prevents a court from making a final determination concerning the controversy without affecting such party's interest.

3. Teacher Contracts: Evidence: Due Process. An evidential hearing, requested regarding potential termination of a teacher's contract, should occur before a tribunal that, among its attributes, is impartial.

Robert M. Spire, Atty. Gen., and Harold I. Mosher, Lincoln, for appellant.

Mark D. McGuire, of Crosby, Guenzel, Davis, Kessner & Kuester, Lincoln, for appellees.

BOSLAUGH, WHITE, and SHANAHAN, JJ., and HOWARD, District Judge and COLWELL, District Judge, Retired.

SHANAHAN, Justice.

In an appeal under the Administrative Procedure Act, Neb.Rev.Stat. §§ 84-901 et seq. (Reissue 1981 & Cum.Supp.1986), the district court for Lancaster County vacated the order or decision of the State Board of Education, which had terminated the teaching contracts of Katherine Heithoff and Jean Luedtke (teachers).

In an appeal from a judgment pursuant to the Administrative Procedure Act, the Supreme Court tries factual questions de novo on the record, which requires the Supreme Court to reach a conclusion independent of the trial court's findings. Haeffner v. State, 220 Neb. 560, 371 N.W.2d 658 (1985); § 84-918 (Reissue 1981) (Supreme Court's de novo review under Administrative Procedure Act).

By written contract, the State Department of Education employed Heithoff and Luedtke as teachers at the Nebraska School for the Deaf for the 1985-86 school year. On February 26, 1986, Commissioner of Education Joe E. Lutjeharms sent to the board members a memo, recommending and outlining a reduction in the teaching staff at the Nebraska School for the Deaf, a reduction which called for eliminating the teaching positions of Heithoff, Luedtke, and one other teacher. In his memo, Lutjeharms requested that the board take action on his recommendation "so that preliminary notices of reduction in force can be sent as required by ... the Teachers Association contract." According to minutes of the board's March 7 meeting, the "Consent Agenda" for the meeting contained "Information Items," including "Reduction in Force at the Nebraska School for the Deaf." However, as reflected by the minutes for the March 7 meeting, the board took no action on Lutjeharms' recommended reduction in force which was the subject of his February 26 memo to the board.

On March 26, Lutjeharms mailed a letter to Heithoff, informing her that her contract for teaching "will be terminated at the close of the 1985-86 school year" and explaining that "this termination is a reduction in force due to budgetary considerations, decreasing student population, a teacher returning from leave, and staffing needs. You have a right to request a hearing before the State Board of Education." A similar letter was sent to Luedtke on that date. Heithoff and Luedtke requested a hearing. In response to the Heithoff-Luedtke requests, Lutjeharms, on April 11, sent another letter to each of the teachers, again expressing the "reasons for termination," as stated in his March 26 letters, and notifying the teacher that her requested hearing was scheduled for May 2. At the hearing, Heithoff and Luedtke appeared with their lawyer, who called the board's attention to statutes pertaining to termination of a teacher's contract, including Neb.Rev.Stat. §§ 79-1254.02 and 79-1254.06 (Reissue 1987).

Section 79-1254.02 in pertinent part provides:

[E]ach [teacher's] contract shall be deemed renewed and in force and effect until a majority of the board votes, sixty days before the close of the contract period, to amend or terminate the contract for just cause. The secretary of the board shall notify each teacher ... in writing at least ninety days before the close of the contract period of any conditions of unsatisfactory performance or a reduction in teaching staff ... that the board considers may be just cause to either amend or terminate the contract for the ensuing year. [A teacher may request a hearing.] At the hearing, evidence shall be presented in support of the reasons given for considering amendment or termination of the contract, and the teacher ... shall be permitted to produce evidence related thereto. The board shall render the decision to amend or terminate a contract based on the evidence produced at the hearing.

Section 79-1254.06 provides:

Before a reduction in force shall occur, it shall be the responsibility of the board of education and the school district administration to present competent evidence demonstrating that a change in circumstances has occurred necessitating a reduction in force. Any alleged change in circumstances must be specifically related to the teacher or teachers to be reduced in force, and the board, based upon evidence produced at the hearing ... shall be required to specifically find there are no other vacancies on the staff for which the employee to be reduced is qualified by endorsement or professional training to perform.

The lawyer for Heithoff and Luedtke asserted that the board had already reached a decision and taken final action on the question of a reduction in the teaching staff relative to Heithoff and Luedtke and, in view of such alleged predetermination by the board, requested dismissal of the proceedings. When the board refused to dismiss the proceedings, Heithoff and Luedtke declined to participate further in the proceedings and, accompanied by their attorney, left the hearing. Based on evidence presented at the May 2 hearing, the board found that a reduction in force was justified, necessitating elimination of Heithoff and Luedtke from the teaching staff, and ordered that the teaching contracts for Heithoff and Luedtke be terminated at the close of the 1985-86 school year.

Pursuant to the Administrative Procedure Act, Heithoff and Luedtke appealed to the district court. In their petition, Heithoff and Luedtke stated that, before the May 2 hearing, the "Nebraska State Department of Education and the State Board of Education had predetermined the question of their continued employment," as evidenced by the board's action taken at its meeting held on March 7, 1986, and further evidenced by the Lutjeharms' letters of March 26 and April 11. In their petition, Heithoff and Luedtke claimed that the board's predetermination was a denial of procedural due process, that is, a right to a hearing before a "fair and impartial tribunal," and requested that the court vacate the board's order which had terminated the teachers' employment with the named defendant, State Board of Education. To obtain service on the State Board of Education, the teachers, through their attorney, sent summons by certified mail addressed to:

Mr. Robert Spire

Attorney General's Office

Room 2115, State Capitol

Lincoln, Nebraska 68509.

The return receipt for the certified mailing of the summons was signed by "Val G. Finney" on June 3, 1986, but the receipt did not indicate where the mailed item was actually delivered. The teachers' attorney, on behalf of Heithoff and Luedtke, timely filed an "Affidavit of Service" as proof of service, which, by reference, incorporated the signed postal receipt attached to the affidavit. The attorney's affidavit stated that receipt for the certified mail was "signed by Val Finney, of the Office of the Attorney General of the State of Nebraska." The affidavit or proof of service also stated that the certified mailing, for which Val Finney had signed the postal receipt at the office of the Attorney General, included a copy of the petition by Heithoff and Luedtke. Neb.Rev.Stat. § 25-505.01(1)(c) (Reissue 1985) provides that service by certified mail "shall be made by (i) within ten days of issuance, sending the summons to the defendant by certified mail with a return receipt requested showing to whom and where delivered and the date of delivery, and (ii) filing with the court proof of service with the signed receipt attached." Neb.Rev.Stat. § 25-507.01(2) (Reissue 1985) provides: "When service is by certified mail, the plaintiff or plaintiff's attorney shall file proof of service within ten days after return of the signed receipt."

Claiming that there was an invalid service of summons, the State Board of Education filed a special appearance, which was overruled. The board then filed a demurrer, contending that the court lacked jurisdiction over the board for the purpose of the teachers' appeal and further objected because "[t]here is a defect ofparties defendant." See Neb.Rev.Stat. § 25-806(4) (Reissue 1985). When its demurrer was overruled, the board answered, preserving its objection to the court's jurisdiction over the board, and requested affirmance of the board's order terminating the teachers' employment.

The district court concluded that the board had taken "final action" on March 7, 1986, in violation of §§ 79-1254.02 and 79-1254.06 insofar as the board had taken final action, terminating the teachers' contracts, before the hearing requested by the teachers. The court then vacated the board's action and ordered that the teachers be reinstated with back wages to the date of reinstatement.

On appeal, the board contends that the district court erred in (1) finding that summons had been...