James v. Sevre-Duszynska, No. 2003-CA-002166-MR.

• Decision Date: 26 August 2005
• Docket Number: No. 2003-CA-002166-MR.,No. 2003-CA-002235-MR.
• Citation: 173 S.W.3d 250
• Parties: Kenneth JAMES, in his Official Capacity as Superintendent of the Fayette County Public Schools; and Board of Education of Fayette County, Kentucky, Appellants, v. Janice SEVRE-DUSZYNSKA; Gene Wilhoit, in his Official Capacity as Chief State School Officer; and Martha Boyd, Thomas Lynch, and Lilly Sullivan, in their Official Capacities as Members of the Hearing Tribunal, Appellees, and Janice Sevre-Duszynska, Cross-Appellant, v. Board of Education of Fayette County, Kentucky; and Kenneth James, in his Official Capacity as Superintendent of Fayette County Public Schools, Cross-Appellees.
• Court: Supreme Court of Kentucky

173 S.W.3d 250

Kenneth JAMES, in his Official Capacity as Superintendent of the Fayette County Public Schools; and Board of Education of Fayette County, Kentucky, Appellants, v. Janice SEVRE-DUSZYNSKA; Gene Wilhoit, in his Official Capacity as Chief State School Officer; and Martha Boyd, Thomas Lynch, and Lilly Sullivan, in their Official Capacities as Members of the Hearing Tribunal, Appellees, and Janice Sevre-Duszynska, Cross-Appellant, v. Board of Education of Fayette County, Kentucky; and Kenneth James, in his Official Capacity as Superintendent of Fayette County Public Schools, Cross-Appellees.

No. 2003-CA-002166-MR.

No. 2003-CA-002235-MR.

Court of Appeals of Kentucky.

August 26, 2005.

COPYRIGHT MATERIAL OMITTED

Robert L. Chenoweth, John C. Fogle, III, Frankfort, KY, for Appellants/Cross-Appellees.

Mary W. Ruble, Lexington, KY, for Appellee/Cross-Appellant, Janice Sevre-Duszynska.

No Brief for Appellees, Gene Wilhoit, Martha Boyd, Thomas Lynch and Lilly Sullivan.

Before COMBS, Chief Judge; GUIDUGLI and McANULTY, Judges.

OPINION

GUIDUGLI, Judge.

Kenneth James, in his official capacity as Superintendent of the Fayette County Public Schools and the Board of Education of Fayette County, Kentucky (hereinafter, collectively, "the Board") have appealed from the Fayette Circuit Court's Final Judgment entered September 13, 2003, upholding the administrative tribunal's decision to reinstate Janice Sevre-Duszynska to her teaching position and to impose no sanction upon her for insubordination. Sevre-Duszynska has perfected a cross-appeal on the limited issue of the proof necessary to support a charge of insubordination. We affirm on the direct appeal, but reverse and remand on the cross-appeal.

While the facts underlying this appeal are not disputed, a recitation of those facts is necessary for a full understanding of the case. Sevre-Duszynska began teaching English as a Second Language for Fayette County Public Schools at Henry Clay High School in 1990, and began working under a continuing contract at the beginning of the 1994-1995 school year. By all accounts, she has been an excellent and dedicated teacher. Sevre-Duszynska became involved with a religious-based political organization called School of the Americas Watch, which organized protests at Ft. Benning, Georgia. On November 18, 2001, Sevre-Duszynska participated in one of the protests by leading a prayer group at Ft. Benning, and was arrested when she "crossed the line" onto federal property. As a first-time offender, she received a "ban and bar" letter, which she believed would be the only punishment imposed on her. She returned to her teaching position in Kentucky, and in the spring of 2002, learned that she was going to be prosecuted for trespass. Following her July 8 through July 12, 2002, trial, Sevre-Duszynska was convicted, and she received a ninety-day sentence and $500 fine. As before, she returned to Kentucky and her teaching position following the trial. She received a message on August 15 from a probation officer that she was to report to the federal women's prison camp in Lexington on September 10 to begin service of the ninety-day sentence. Sevre-Duszynska notified the school principal the next day.

On August 19, she received a letter from Interim Superintendent, Dr. L. Duane Tennant,¹ suspending her with pay for twenty workdays so that he could investigate the facts surrounding her federal conviction and prison sentence. She was escorted from the building. Sevre-Duszynska responded in an undated letter on or about August 24 indicating that she would need a leave of absence from September 10 through December 10 to serve her prison sentence. Dr. Tennant replied to her letter on September 5, 2002, denying her request for leave. Sevre-Duszynska reported for her prison sentence on September 10, and was released on December 6, 2002. The following day, she picked up a certified letter from Dr. Tennant dated December 4, 2002. In the letter, Dr. Tennant terminated her contract as a teacher with Fayette County Public Schools based upon charges of insubordination and conduct unbecoming a teacher, as well as upon her violation of the Professional Code of Ethics for Kentucky School Certified Personnel. As grounds for her termination, Dr. Tennant cited her absence from work without leave beginning on September 10, which he stated constituted a material breach of her contract. In addition to terminating her contract, Dr. Tennant also suspended her without pay pending any appeal she might pursue.

Sevre-Duszynska obtained an attorney and initiated an appeal of her termination by letter dated December 9, 2002. She also requested a hearing pursuant to KRS 161.790 and KRS Chapter 13B. The matter was then assigned to a hearing officer, and a hearing was scheduled for January 23 and 24, 2003. Prior to the hearing, Sevre-Duszynska moved to dismiss the charges against her, citing Dr. Tennant's failure to follow the terms of the statute when he did not forward her request for leave to the Board of Education, the lack of a written record of teacher performance to support the insubordination charge, as well as the lack of a specific ethics code violation. In the prehearing conference order, the hearing officer denied the motion to dismiss, determining, in part, that statutes, regulations, local board policies and teacher contracts can provide the teacher with the written notice of the performance expected as contemplated by the statute.

At the hearing, the three-member tribunal heard testimony from Dr. Tennant and Sevre-Duszynska, as well as from other teachers at Henry Clay High School, a former student, and a teacher from Washington who is also involved in the School of the Americas Watch organization. On January 31, 2003, the tribunal issued its Final Order, rejecting Dr. Tennant's sanction. While it determined that Sevre-Duszynska did not violate the Code of Ethics or engage in conduct unbecoming a teacher, the tribunal agreed with the Board that she was technically insubordinate because she was absent without leave. However, the tribunal concluded:

[B]ut she did not intend to defy a direct order of the state, the Schools, or Dr. Tennant. She reasonably expected not to be prosecuted for her participation in the special demonstration, and she did nothing during that demonstration to change what she expected would happen. Although the Tribunal cannot know what the Fayette County School Board would have done about Ms. Sevre-Duszynska's leave request had the Board addressed it, the fact that Ms. Sevre-Duszynska did not have leave during her incarceration was, in fact, a result of the Superintendent failing to put the matter before the Board.

The tribunal then determined, by a majority, that Sevre-Duszynska should be reinstated with full back pay to the date of her termination. In looking at the context of the charges as to the appropriate penalty, the tribunal stated:

10. Whenever a teacher cannot teach and has not been granted leave from teaching duties, there are competing considerations for a school system. School systems should consider the circumstances that render a teacher unable to teach. Schools should also consider the expected length of the absence and the inconvenience to the school district. And schools should consider the teacher's performance record within the school system.[ ] Although previous bad conduct by the teacher should be dealt with on its own merits, if the teacher is effective, the Schools should consider whether retaining the teacher will benefit the students. The Schools improperly failed to consider the circumstances of Ms. Sevre-Duszynska's absence from teaching. And the Schools argued that Ms. Sevre-Duszynska's past teaching record was irrelevant. To the contrary, all the Tribunal members believe a teacher's teaching record should be one factor considered in deciding the appropriate sanction for any violation.

11. The majority of the Tribunal believes that the Superintendent acted improperly in thwarting Ms. Sevre-Duszynska's attempt to obtain leave from the Board, that he ignored her record as a valuable member of the Henry Clay faculty, and that he did not treat her as a part of an education family. Instead, the Superintendent treated her in a manner that impugned her character and caused her to suffer unnecessary embarrassment and expense. The majority believes the Schools should have learned more about the circumstances of her incarceration, and that it should have responded more compassionately to one of its own who had the courage to face prison for her convictions. The majority of the Tribunal believes Ms. Sevre-Duszynska should be reinstated with back pay to rectify the needless harm the Schools inflicted on her.

The Final Order read: "Based upon the foregoing findings of fact and conclusions of law, the Tribunal ORDERS that the Fayette County Schools reinstate Ms. Sevre-Duszynska with back pay to the date of her termination."

The Board filed a Complaint in Fayette Circuit Court from the tribunal's Final Order, solely on the insubordination charge. In the complaint, the Board alleged that the tribunal's conclusions of law were inconsistent with its findings of fact, making its reinstatement of Sevre-Duszynska arbitrary and capricious under § 2 of the Kentucky Constitution, that the decision to impose no sanction was an abuse of discretion and constituted arbitrary action, that the tribunal had no authority to excuse her breach of contract, that the tribunal exceeded its statutory authority to excuse her act of abandonment or resignation of employment, that Dr. Tennant's decision to terminate her was supported by substantial evidence, and that the tribunal could not substitute its judgment for that of Dr. Tennant. The complaint also named Gene Wilhoit, as the Chief State School Officer, and the three tribunal members as defendants. These defendants deferred to the real parties in interest for the active...