Jones v. Sully Buttes Schools, 14110

• Decision Date: 30 November 1983
• Docket Number: No. 14110,14110
• Parties: 14 Ed. Law Rep. 809 Coleta JONES, Plaintiff and Appellant, v. SULLY BUTTES SCHOOLS, Sully Buttes School District Board of Education, Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 697

340 N.W.2d 697

14 Ed. Law Rep. 809

Coleta JONES, Plaintiff and Appellant, v. SULLY BUTTES SCHOOLS, Sully Buttes School District Board of

Education, Defendant and Appellee.

No. 14110.

Supreme Court of South Dakota.

Argued Oct. 25, 1983.

Decided Nov. 30, 1983.

A.P. Fuller of Amundson & Fuller, Lead, for plaintiff and appellant.

Warren W. May of May, Adam, Gerdes & Thompson, Pierre, for defendant and appellee.

DUNN, Justice.

This is an appeal from a judgment of the circuit court affirming a school board's decision not to rehire a tenured teacher. We affirm.

Appellant Coleta Jones (Jones) was the principal and a tenured teacher in the Sully Buttes School System. In March 1982 appellee Sully Buttes Schools and Sully Buttes Board of Education (Board) informed Jones that it did not intend to renew her contract. Following a number of procedures at the school district level, Board reaffirmed its decision. Jones appealed to the circuit court, which upheld Board's decision.

Jones raises three issues on appeal: 1) Did Jones receive all the procedural rights guaranteed to tenured teachers by SDCL 13-43-9.1 and 13-43-10? 2) Did Board base its decision not to renew Jones' contract upon competent, credible evidence, or was the decision a result of bias? 3) Did Board violate Jones' constitutional right of freedom of speech?

Initially, we examine Jones' claim that the circuit court should have overturned Board's decision on procedural grounds since only one written notice was given to her by Board, and not two as required by the tenured teacher statutes. SDCL 13-43-9.1 requires that on or before the third Monday in March, the school board must notify in writing a tenured teacher of its intention not to renew his or her contract. SDCL 13-43-10 states that not earlier than fourteen days nor later than twenty-one days after the notice of SDCL 13-43-9.1, the board shall again notify the teacher in writing of its intent not to renew the contract; failure to comply with these provisions constitutes an offer to renew the contract. SDCL 13-43-10.1 states that within seven days after receipt of the second notice, the teacher may request a hearing before the school board.

On March 10, 1982, Jones received a written notice from Board of its intention not to renew her contract. On March 16, 1982, Jones delivered a letter to Board requesting a hearing before Board, as provided in SDCL 13-43-10.1. The hearing was held on March 22, 1982, and Board affirmed its decision not to rehire Jones. The second written notice required by statute was never given to Jones. Despite the fact that Jones requested the hearing before the second notice could legally be given by Board, Jones maintains that failure of Board to give two notices requires reversal of Board's decision. We disagree.

The general rule is that all of the procedural requirements of the teacher employment statutes must be followed by school boards. Moran v. Rapid City Area School Dist., 281 N.W.2d 595 (S.D.1979). However, we have also recognized that a teacher may waive the procedural rights given by the statutes. "In the absence of a waiver or other legal cause the giving of such statutory notice is necessary if automatic renewal of a teacher's contract is to be avoided." Blood v. Spring Creek Number 12, Common School Dist., 78 S.D. 580, 584, 105 N.W.2d 545, 547 (1960).

A waiver exists where one in possession of any right, whether conferred by law or contract, and of full knowledge of the material facts, does or forbears the doing of something inconsistent with the existence of the right. Western Cas. and Sur. v. American Nat., Etc., 318 N.W.2d 126 (S.D.1982); Hood v. Sioux Steel Co., 67 S.D. 1, 287 N.W. 636 (1939). The circuit court was correct in finding that Jones knowingly waived her right to a second notice when she demanded a hearing very soon after receiving the first notice. Jones was represented by counsel prior to the time when the second notice could be given, and at the hearing neither Jones nor her counsel objected to the failure to give a second notice. In addition, Jones had worked on preparation of a school handbook which related to all the rights of teachers under SDCL ch. 13-43.

Therefore, even though the second notice required by statute was never given, no reversible error occurred. Jones knowingly waived her right to a second notice by doing an act inconsistent with her right--demanding a hearing only six days after the first notice. She may not now claim all of her procedural rights.

We next turn to Jones' claim that Board's decision was not based upon competent, credible evidence, and that it was in fact based upon bias. Jones maintains that her situation is like that in Huffman v. Bd. of Ed. of Mobridge Ind. Sch. Dist., Etc., 265 N.W.2d 262, 266 (S.D.1978), in which we overturned a school board's decision because it was based upon "inherently subjective and nebulous criticism" of a teacher.

In order to meet the requirements of a fair tribunal, a school board must base its decision upon competent, credible evidence, and there must be no evidence of...