Hummer v. Evans

• Decision Date: 29 August 1996
• Docket Number: No. 21796,21796
• Citation: 129 Idaho 274,923 P.2d 981
• Parties: , 113 Ed. Law Rep. 452, 12 IER Cases 122 Joy D. HUMMER, Plaintiff-Respondent, v. Jerry L. EVANS, in his capacity as Superintendent of the Idaho Department of Education, Defendant-Appellant. Boise, February, 1996 Term
• Court: Idaho Supreme Court

Page 981

923 P.2d 981

129 Idaho 274, 113 Ed. Law Rep. 452, 12 IER Cases 122

Joy D. HUMMER, Plaintiff-Respondent, v. Jerry L. EVANS, in his capacity as Superintendent of the Idaho Department of Education, Defendant-Appellant.

No. 21796.

Supreme Court of Idaho,

Boise, February, 1996 Term.

Aug. 29, 1996.

Rehearing Denied Oct. 10, 1996.

Cosho, Humphrey, Greener & Welsh, Boise, for appellant Jerry Evans. Howard Humphrey argued.

Alan G. Lance, Attorney General; Kirby D. Nelson, Deputy Attorney General, Boise, for appellant Idaho Department of Education.

Skinner, Fawcett & Mauk, Boise, for respondent. William L. Mauk argued.

SCHROEDER, Justice.

This is an appeal from a Decision and Order entered after a court trial. The case concerns the termination of Joy Hummer, an employee of the Idaho Department of Education. The termination was based on a letter written by the employee to a judge related to the sentencing of a felon. The district court held that the termination violated public policy and awarded damages against Jerry Evans, a former State Superintendent of Public Instruction. Evans appeals the ruling of the district court.

I. BACKGROUND AND PRIOR PROCEEDINGS

Joy Hummer was hired by the Idaho Department of Education ("Department") on September 12, 1988, as a consultant on Acquired Immune Deficiency Syndrome (AIDS) education. The consultant had the general responsibility to research and disseminate AIDS information to local educators, to provide in-service education on AIDS education to teachers and administrators, to represent the Department on task forces and to provide technical assistance to local educators on AIDS education and prevention. A subsequent letter of appointment dated July 1, 1991, provided that the employment was "for the period beginning July 1, 1991, and ending June 29, 1992, at an annual salary of Thirty Nine Thousand Dollars and no cents ($39,000.00)."

During her employment with the Department, Hummer experienced some public relations difficulties. She conducted an in-service training for the Mountain Home School District in early 1990 on the legal aspects of HIV-AIDS education. After a non-mandatory workshop some participants remained to discuss issues with Hummer. In the aftermath of a joking reference to approaches being taken by school districts elsewhere in the nation she showed them a list of condom slogans developed by school children. One teacher copied the list, and subsequently another teacher from Mountain Home asked Hummer to mail a copy of the slogans. The teacher from Mountain Home was outraged by the list and wrote Idaho legislators, some of whom were also distressed. Hummer wrote a letter of apology to the legislature. She also tendered her resignation which was not accepted. However, she lost one week's pay and was placed on probation for several months.

Subsequent to the slogan list problem, Hummer drafted a training notebook to be used by school districts for sex education. Evans was contacted by legislators who objected to some of the lessons in the notebook. Evans then directed the superintendents to return the notebooks to Hummer and made them available upon request only. No disciplinary action was taken against Hummer for the mailing of the training notebooks.

In a June, 1991 evaluation, Hummer received a generally good evaluation. However, her supervisor noted the following:

Joy needs to continue to explore ways to meet the objectives of the project without creating a vocal uproar. The tenuous circumstances surrounding the project are not a result of Joy trying to meet the needs of the schools but the powerful influence of some, who are opposed to any sexual related programs in our schools.

During an AIDS education session for the Idaho Department of Probation and Parole, Hummer met an inmate, Kerry Stephen Thomas, who had tested positive for the HIV virus. Thomas was a Boise State University basketball player who had been convicted of statutory rape for his involvement with a young patient at a psychiatric facility where he worked. He had consensual sexual relations with several women after he knew he had tested positive for the HIV virus, but the criminal charges relating to those activities were dismissed as part of a plea bargain with the State. Hummer found Thomas's ignorance about his HIV status and his lack of anyone to talk to about his disease to be appalling. She found him personable and intelligent and hoped to persuade him to be a speaker on AIDS prevention.

The attorney for Thomas was seeking to get his sentence reduced. On two occasions the attorney subpoenaed Hummer to provide testimony at hearings on the motion to reduce While Hummer was drafting the letter, a co-worker suggested that Hummer contact the Department's legal counsel before submitting the letter since she was writing the letter on Department letterhead. At trial Hummer testified that the information officer for the Department had warned her after one of the previous conflicts that whatever she did, she did as a representative of the Department.

the sentence. The court hearings were vacated and reset. Hummer had told her supervisor, Mr. Pelton, that she had been subpoenaed; however, there had been no discussions about what her testimony would be. The sentencing hearing was ultimately set for a date when Hummer was scheduled to be out of town for a training conference. She told the attorney for Thomas of her problem, and it was decided that she could simply write a letter to the sentencing judge with the information which she would provide if she testified at the hearing.

Without contacting the Department's legal counsel or her supervisor, Hummer sent the following letter to the sentencing judge on Department letterhead:

TO WHOM IT MAY CONCERN:

Stephen Thomas and I became acquainted when I presented an HIV/AIDS workshop to the probation parole program. After he had shared his HIV status and story, I continued to remain in contact by sending information about the virus and progress in medical research and improved prevention education.

As we visited, Stephen asked me what my interest was in him personally? It had occurred to me that a black, basketball star who had been a hero to many youngsters and received the virus through heterosexual transmission would be a great asset in giving prevention messages to children.

Not realizing how prophetic that statement was, I began to "court" Stephen to see if he might be willing to visit with groups about his story. He is an articulate, intelligent man who could be a great asset to Idaho's prevention programs. Although he is a convicted felon, I believe his story needs to be told because if it can happen to the All-American black kid, it can happen to anyone.

Idaho has its very own Magic Johnson whose HIV story is worth hearing. If/When he is available, I would not hesitate to arrange contact with youth should he agree. Many school districts have requested HIV infected speakers and their presentations have been found to be effective on a short-term basis.

Respectfully,

s/

Joy Hummer

HIV/AIDS Education Consultant

The sentencing judge referred to Hummer's letter in his decision to modify the sentence previously imposed on Thomas.

The Department's policy on the handling of subpoenas was set forth in its Handbook for Employees under the provisions related to leaves. Employees who were subpoenaed in their official capacities were not required to take leave, but employees who were subpoenaed in a non-official capacity had to take accrued leave. There was no policy requiring an employee to notify anyone of a subpoena or the contents of testimony which might be given.

The prosecutor handling the Thomas case was incensed when he determined that another state agency was supporting the sentence reduction. Evans was also angered that the letter appeared to represent a departmental view rather than a private view. Evans received numerous complaints about the impression the letter gave that the Department was using a convicted rapist as a role model.

On February 27, 1992, Evans wrote Hummer a letter of termination, effective February 28, 1992, attributing the letter to the sentencing judge as the basis for the termination. Evans wrote, "While you certainly have every right to make such statements in your individual, private, capacity, the letter was written on State Department of Education letterhead and signed by yourself in your capacity as HIV/AIDS Education Consultant." Evans admonished Hummer's refusal to contact legal counsel prior to writing the letter and her refusal to share the letter with her supervisor. He indicated that Hummer appealed the "recommendation" of Evans to the Idaho Board of Education. However, the Board stated that "the Board has no jurisdiction over the Department of Education terminations," concluding that Hummer was an employee of the Superintendent of Public Instruction.

Hummer's poor judgment jeopardized the AIDS program.

Hummer filed a Complaint in the district court against Evans, the Idaho Department of Education and the Idaho State Board of Education alleging: (1) termination in violation of public policy, (2) breach of an implied contract, (3) breach of the implied covenant of good faith and fair dealing, and (4) intentional interference with a contract. The case was tried before the district court without a jury. The district court issued its initial decision on February 8, 1994, concluding that Hummer's termination was a violation of public policy:

There is an overriding public policy interest in obtaining candid information for use in sentencing decisions. Regardless of the content of the testimony, courts need the input of a variety of people in determining the penalty to be imposed upon a person who has committed a crime. Idaho law requires sentencing judges to consider a variety of factors: the need to protect the public, the need to deter the defendant or those similarly minded, rehabilitation...