Hughes v. Stanley County School Bd., 20272

• Decision Date: 02 June 1998
• Docket Number: No. 20272,20272
• Citation: 594 N.W.2d 346,134 Ed.LawRep. 1024,1999 SD 65
• Parties: 134 Ed. Law Rep. 1024, 1999 SD 65 Mary HUGHES, Appellant, v. STANLEY COUNTY SCHOOL BOARD, Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 346

594 N.W.2d 346

134 Ed. Law Rep. 1024, 1999 SD 65

Mary HUGHES, Appellant, v. STANLEY COUNTY SCHOOL BOARD, Appellee.

No. 20272.

Supreme Court of South Dakota.

Considered on Briefs June 2, 1998.

Reassigned April 14, 1999.

Decided May 26, 1999.

Rick Johnson of Johnson, Eklund, Nicholson, Peterson & Fox, Gregory, South Dakota, Attorneys for appellant.

Charles M. Thompson of May, Adam, Gerdes & Thompson, Pierre, South Dakota, Attorneys for appellee.

GILBERTSON, Justice (on reassignment).

¶1 This is an appeal from a judgment and order of the circuit court, Sixth Judicial Circuit, affirming a decision of the Stanley County School Board (School Board) terminating the contract of Mary Hughes (Hughes) as a school counselor. We reverse and remand, with instructions.

FACTS

¶2 Hughes was employed as an elementary school guidance counselor for the Stanley County School District between 1990 and 1997. During her employment, her earlier evaluations were predominately positive. The only concerns expressed in the evaluations dealt with promptness and class preparation. However, in 1996, Hughes was commended for improving on both. She had always been recommended for re-employment by the school administration.

¶3 In the fall of 1994, M.B., a third grade student, approached Hughes. In her capacity as a guidance counselor, Hughes had worked with M.B. on a number of occasions. M.B. related to Hughes that M.B.'s father, G.B., walked around the house after his showers without a towel. Hughes told M.B. to speak with her mother, F.B., to ask her father to cover up. During a second conversation, M.B. reported her father had touched her in the area of her breast during a playful wrestling match. Hughes described M.B. at the time as having no breast development, but just becoming aware of some of the issues regarding her sexuality. Hughes gave M.B. the same advice as before, to talk to her mother. In a third conversation, M.B. said she had walked in on her father masturbating. Hughes told M.B. to speak to her mother to get her father to be more discreet.

¶4 The fourth and final conversation occurred in May 1995. M.B. reported her father had asked her to touch his penis. Hughes again gave M.B. the same advice. Hughes testified later she doubted the claims of M.B. because of her history and experience counseling the child. M.B. had a tendency to fabricate or exaggerate the facts. On at least one prior occasion M.B. had spoken untruthfully and Hughes required her to apologize before the class.

¶5 Throughout this series of conversations, Hughes was aware the School Board had a policy requiring teachers to report suspected child abuse to the school administration. She was also aware of the school policy forbidding teachers to contact the parents to determine the cause of the suspected abuse.

¶6 After this last conversation, however, Hughes sought advice from the high school counselor on how she should proceed. He agreed with Hughes' assessment of the situation, that M.B. was fabricating the touching incident. Both the high school counselor and Hughes agreed, speaking with the parents was the proper course of action. Hughes spoke with F.B. and G.B. separately to discuss the allegations their daughter had made. Both parents informed Hughes the first three allegations were essentially true and G.B. had taken steps to avoid any reoccurrence in the future. Both parents insisted the last allegation, regarding the request for M.B. to touch G.B.'s penis, was untrue.

¶7 Hughes continued to monitor the situation by checking with M.B. on a daily basis. M.B. never related any further incidents with her father. M.B. did tell Hughes that her father was now "wearing a robe and there were no other sexual incidents ever after that."

¶8 In July 1996, the Stanley County Sheriff's Office began to investigate an alleged sexual assault by G.B. against a neighbor child. As part of the investigation, Hughes was questioned about her conversations with M.B. Hughes related this to the school superintendent, Jerry Kleinsasser (Kleinsasser), who told her to talk to the school principal, Denise Gebur (Gebur), when Gebur returned from vacation. In August 1996, Hughes submitted a written report to Gebur regarding M.B.'s allegations. G.B. ultimately pled guilty to the sexual assault charge arising out of the incident with the neighbor child.

¶9 On September 3, 1996, Hughes was provided a "Plan of Assistance" by Gebur, designed to provide support, guidance and supervision as a result of the concerns generated from the M.B. incident. However, on September 27, 1996, she was served with a "Notice of Intent to Terminate Employment Relationship." This notice, signed by the superintendent of schools, alleged that she had:

[V]iolated the written policy of Stanley County School District No. 57-1 as set forth at page 5 in the teacher handbook given to you for the 1994-95 school year under the heading 'Child Abuse/Neglect,' ¹ and violated state law concerning the reporting of suspected child abuse, including but not limited to, SDCL 26-8A-3 and SDCL 26-8A-2(8) in the fall of 1994, which failure to report has been recently discovered by the administration and the State of South Dakota. ²

Initially, she was suspended with pay until a hearing was to be held on the matter. Prior to having been served with the termination notice, Hughes was criminally charged with Failure to Report Child Abuse or Neglected Child under SDCL 26-8A-3 ³ by the Stanley County State's Attorney. According to the testimony of Principal Gebur, the fact Hughes had been criminally charged after the "Plan of Assistance" was provided, led to her termination notice.

¶10 At the conclusion of Hughes' criminal case, the jury split 11-1 for acquittal resulting in a mistrial. Thereafter, the Stanley County State's Attorney dismissed all charges related to this incident. By the time the criminal trial was held, the School Board had suspended Hughes without pay pending the administrative hearing and hired a replacement.

¶11 On February 13, 1997, the School Board held a hearing on the "Notice to Terminate." ⁴ Prior to the hearing, Hughes sought to question the members of the School Board about possible bias. Upon advice of its attorney, the School Board denied Hughes that opportunity. It appears from the record Hughes was concerned about several matters with respect to School Board members: (1) two members of the School Board had children previously counseled by Hughes, resulting in a disagreement with the parents; (2) Hughes felt some members may bring to the deliberations outside information not presented at the hearing; (3) one School Board member was an employee of the South Dakota Department of Social Services, which was involved to some extent in the investigation of this matter; and (4) Hughes believed the School Board members had pre-determined the result of the case. After the hearing, the School Board voted to issue its "Notice of Termination of Employment Relationship," concluding Hughes had "breached [her] contract of employment." The appeal to the circuit court followed.

¶12 Before the circuit court, Hughes called the School Board's chairperson, the Superintendent of Schools, Jerry Parkinson (her former supervisor in Court Services) and herself as witnesses. The School Board called no additional witnesses, but introduced several exhibits, including correspondence between the lawyers concerning the scheduling of the hearings, the circuit court order regarding the preliminary injunction, Hughes' employee evaluations from December 1993 to April 1996 and the transcript of the preliminary hearing before the magistrate judge on the criminal charge.

¶13 At the conclusion of the trial, the circuit court judge affirmed the decision of the School Board. Thereafter, findings of fact and conclusions of law were entered. This appeal followed.

¶14 Hughes raises three issues in this appeal:

1. Whether SDCL 13-43-15 was the applicable statute to be used as the basis of Hughes' termination.

2. Whether bias caused the School Board to act arbitrarily or abuse its discretion in terminating Hughes.

3. Whether Hughes' actions in not reporting the claim of child abuse and making contact with the child's parents were violations of school policy and therefore her contract.

STANDARD OF REVIEW

¶15 A proceeding in circuit court on an appeal pursuant to SDCL 13-46-1 is a trial de novo. On appeal to the circuit court, the court may determine the legality of that decision. Strain v. Rapid City School Bd., 447 N.W.2d 332, 338 (S.D.1989). However, great deference is given to the good faith determinations of school boards on decisions of whether to renew a teacher's contract. Jager v. Ramona Bd. of Educ., 444 N.W.2d 21, 25 (S.D.1989). The appeal to the circuit court is not a trial de novo in the true sense of the phrase, as it has the limited function of receiving evidence for the sole purpose of determining the legality, and not the propriety, of the school board's decision. Riter v. Woonsocket School Dist. No. 55-4, 504 N.W.2d 572, 574 (S.D.1993). The determination of legality is a two-pronged process: (1) whether the School Board acted legally, and (2) whether the School Board's decision was arbitrary, capricious or an abuse of discretion. Id. On appeal to this Court, we review facts under the clearly erroneous standard, however, questions of law are reviewed de novo. Aman v. Edmunds Cent. Sch. Dist., 494 N.W.2d 198, 199 (S.D.1992).

DECISION

¶16. 1. Whether SDCL 13-43-15 was the applicable statute to be used as the basis of Hughes' termination.

¶17 A number of statutes govern the contractual relationship between school boards and teachers in the State of South Dakota. If a teacher is in or beyond the third full consecutive term of employment in a school district, (therefore considered a "tenured" teacher), the school board must notify the teacher in writing before the third Monday in March preceding the...