Hovet v. Hebron Public School Dist.

• Decision Date: 02 February 1988
• Docket Number: No. 870224,870224
• Citation: 419 N.W.2d 189
• Parties: 44 Ed. Law Rep. 1325, 15 Media L. Rep. 1118 Meredith HOVET, Plaintiff and Appellant, v. HEBRON PUBLIC SCHOOL DISTRICT and Madonna Tibor, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 189

419 N.W.2d 189

44 Ed. Law Rep. 1325, 15 Media L. Rep.

1118

Meredith HOVET, Plaintiff and Appellant, v. HEBRON PUBLIC SCHOOL DISTRICT and Madonna Tibor, Defendants

and Appellees.

Civ. No. 870224.

Supreme Court of North Dakota.

Feb. 2, 1988.

Michael Geiermann, of Chapman & Chapman, Bismarck, for plaintiff and appellant.

Gary R. Thune, of Pearce & Durick, Bismarck, for defendant and appellee Hebron Public School District.

Michael J. Maus, of Howe, Hardy, Galloway & Maus, P.C., for defendant and appellee Madonna Tibor.

Jack McDonald, Jr., of Wheeler, Wolf, Peterson, Schmitz, McDonald & Johnson, Bismarck, for amici curiae North Dakota Newspaper Ass'n and The North Dakota Chapter of the Society of Professional Journalists/Sigma Delta Chi.

VANDE WALLE, Justice.

Meredith Hovet appealed from a judgment of dismissal declaring his personnel file to be a public record open for inspection by the public under the provisions of Sections 44-04-18 and 15-29-10, N.D.C.C., and Article XI, Section 6, of the North Dakota Constitution. We affirm.

Hovet was employed by the Hebron Public School District (School District) as a teacher of business education and physical education during the 1986-1987 school year and had been so employed for the previous three school years. During the course of this employment a personnel file was maintained by the School District.

By a letter dated May 21, 1987, Madonna Tibor requested that the School District allow her to review Hovet's personnel file. Subsequently the superintendent for the School District agreed to provide a review of Hovet's personnel file on June 2, 1987.

Hovet then filed a complaint seeking a permanent injunction enjoining the School District from allowing the review of his personnel file by anyone other than a legal representative of the School District. At this time Hovet also sought a temporary restraining order prohibiting the review. A hearing was held and a temporary restraining order was granted. The trial court also ordered that Tibor could become a party to the action.

The parties determined to submit the case to the trial court on briefs. Hovet and the School District each argued that the personnel file was confidential. Tibor argued that the personnel file was a public record open to inspection. Thereafter the trial court determined that Hovet's personnel file was a public record open for inspection under Sections 44-04-18 and 15-29-10, N.D.C.C., and Article XI, Section 6, of the North Dakota Constitution. The trial court issued a judgment of dismissal. It is from this judgment that Hovet appealed. We note that the School District has aligned itself with Hovet and against Tibor on appeal.

I

Hovet and the School District concede that the personnel file is a governmental record, but argue that it is a record not open to public inspection because certain statutes protect a teacher's personnel file from inspection under the open-records law. The concession that the personnel file is a governmental record is based upon this court's decisions in City of Grand Forks v. Grand Forks Herald, 307 N.W.2d 572 (N.D.1981) [holding that the personnel file of a former chief of police is a public record under the open-records law], and Forum Publishing Co. v. City of Fargo, 391 N.W.2d 169 (N.D.1986) [holding that the applications and records disclosing the names and qualifications of applicants for chief of police are public records under the open-records law].

Open governmental records in North Dakota are required by our Constitution and our statutes. Article XI, Section 6, of the North Dakota Constitution provides:

"Unless otherwise provided by law, all records of public or governmental bodies, boards, bureaus, commissions, or agencies of the state or any political subdivision of the state, or organizations or agencies supported in whole or in part by public funds, or expending public funds, shall be public records, open and accessible for inspection during reasonable office hours."

Section 44-04-18, N.D.C.C., tracks and implements Article XI, Section 6. It provides:

"1. Except as otherwise specifically provided by law, all records of public or governmental bodies, boards, bureaus, commissions or agencies of the state or any political subdivision of the state, or organizations or agencies supported in whole or in part by public funds, or expending public funds, shall be public records, open and accessible for inspection during reasonable office hours.

"2. Violations of this section shall be punishable as an infraction."

The first argument of Hovet and the School District is that Section 15-47-38, N.D.C.C., provides an implied exception to the open-records law. Section 15-47-38 specifies the procedures to be utilized when a school board discharges a teacher or decides to not renew a teacher's contract. Among these procedures are the following: For a nonrenewal decision the reasons for nonrenewal must be drawn from specific and documented findings arising from formal reviews conducted by the board with respect to the teacher's overall performance; that such proceedings must be held in an executive session unless both parties agree to open them to the public; that no action for libel or slander shall lie for statements expressed orally or in writing at the executive sessions. Hovet and the School District argue that these procedures are designed to facilitate openness in the proceedings and to protect the teacher's reputation. They reason that opening to the public a teacher's personnel file--which would be reviewed at these proceedings--harms the above-stated goals. Thus, they conclude, an exception for teachers' personnel files from the open-records law must be implied.

This argument, however, ignores the language of the open-records law. Section 44-04-18(1), N.D.C.C., provides that all governmental records are open to the public "Except as otherwise specifically provided by law, ..." [Emphasis added.] Our Code provides that "Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, ..." Section 1-02-02, N.D.C.C. The word "specific" usually is defined to mean "Explicitly set forth; particular, definite." American Heritage Dictionary, 1973. This definition is opposite to the meaning of "implied," which is defined to mean "suggested, involved, or understood although not clearly or openly expressed." American Heritage Dictionary, 1973. Thus, because the open-records law provides that governmental records are to be open to the public "Except as otherwise specifically provided by law," an exception to the open-records law may not be implied. In order that a record may be excepted from the open-records law the Legislature must specifically address the status of that type of record--e.g., statements that a certain type of record is confidential or that it is not open to the public.

Our decision that action taken to except a record from the open-records law must be specific is supported by comments made at the time of the consideration of the open-records law. As one newspaper reported, quoting Representative Ralph Beede, speaking on behalf of the open-records law at the time of its original statutory enactment in 1957:

"He said that if administrative agencies, such as the State Public Service Commission which gets certain private information from utilities, feel they have records that should be kept confidential, 'they should come to the Legislature and let it decide on the question.' " Bismarck Tribune, February 15, 1957, p. 1.

Thus, for an exception to the open-records law to exist under our constitutional and statutory provisions, it must be specific, i.e., the Legislature must directly address the status of the record in question, for a specific exception, by the plain terms of those provisions, may not be implied. Therefore, the contention that an exception to the open-records law for teacher personnel files should be implied from Section 15-47-38, N.D.C.C., must fail.

Hovet and the School District also argue that an exception to the open-records law for teacher personnel files can be based in Chapter 15-38.2, N.D.C.C. That chapter generally provides that a teacher has a right to review his or her personnel file, to make written comments on anything placed in that file, and those comments are to be attached to the file; and the chapter prohibits the use of secret personnel files to which the teacher does not have access. These statutes do not specifically address the status of teacher personnel files. As we stated above, an exception to the open-records law may not be implied. Therefore, this argument, too, must fail.

The legislative history of Chapter 15-38.2 also indicates that the Legislature was not specifically considering the status of teacher personnel files in regard to the open-records law. In comments before the Senate Education Committee, Lee Fleischer, the Director of Professional Development for the North Dakota Education Association, stated that the purposes of the bill were "(1) to prevent and prohibit secret files; and (2) to provide a reasonable method for allowing teachers to see what is in their personnel file." Sen.Ed.Comm. Minutes (Jan. 31, 1977).

II

Hovet next alleges that he has a right to privacy guaranteed to him by the United States Constitution and the North Dakota Constitution, which will be violated if the public is allowed to inspect his personnel file. Teachers, like students, do not "shed their constitutional rights ... at the schoolhouse gate." Tinker v. Des Moines Community School Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731, 737 (1969). But...