Kish v. Chilhowee R-IV School Dist., R-IV

• Decision Date: 13 August 1991
• Docket Number: R-IV,No. WD
• Citation: 814 S.W.2d 649
• Parties: 70 Ed. Law Rep. 676 Mary Jo KISH, Plaintiff-Respondent, v. CHILHOWEESCHOOL DISTRICT, Defendant-Appellant. 44079.
• Court: Missouri Court of Appeals

Page 649

814 S.W.2d 649

70 Ed. Law Rep. 676

Mary Jo KISH, Plaintiff-Respondent, v. CHILHOWEE R-IV SCHOOL DISTRICT, Defendant-Appellant.

No. WD 44079.

Missouri Court of Appeals,

Western District.

Aug. 13, 1991.

Robert B. Best, Jr., Kansas City, for defendant-appellant.

K. Martin Kuny, James M. Ziegler, Independence, for plaintiff-respondent.

Before BERREY, P.J., and BRECKENRIDGE, J., and KENNETH W. SHRUM, Special Judge.

KENNETH W. SHRUM, Special Judge.

The defendant Chilhowee R-IV School District appeals from a judgment for damages rendered pursuant to a jury verdict in a breach of contract suit filed by the plaintiff Mary Jo Kish.

ISSUE

The single issue presented is whether the Missouri Administrative Procedure and Review Act, Chapter 536, RSMo 1986, provides the exclusive procedure for resolution of a dispute involving a school district's employment contract when the dispute centers on whether the employee has performed her duties as superintendent of the district. Stated more concisely, did the trial court lack subject matter jurisdiction over the school superintendent's employment contract dispute because of Chapter 536, RSMo 1986?

DECISION

Because we have determined the trial court did not lack subject matter jurisdiction, we affirm.

FACTS

On February 14, 1986, the plaintiff was hired, pursuant to a written contract, to act as superintendent and principal of the defendant school district for the school years 1986-87 and 1987-88. Effective March 1, 1987, the defendant terminated the plaintiff's employment. Thereupon the plaintiff sought damages for breach of contract by filing suit in the Circuit Court of Johnson County. As part of its answer to that suit, the defendant plead that "[p]laintiff breached ... the contract ... by failing to provide reasonable services as Superintendent as required by said contract ..." (emphasis added).

By a Motion for Judgment on the Pleadings and a Motion to Dismiss, the defendant presented to the trial court its additional contention that the trial court lacked subject matter jurisdiction because the Administrative Procedure and Review Act provided the exclusive procedure for resolution of the contract dispute. The trial court overruled those motions.

Following a jury verdict for the plaintiff in the amount of $11,938 and a judgment rendered on that verdict, the defendant again challenged the trial court's jurisdiction by its post-trial motions. This appeal followed when the post-trial motions were denied by the trial court.

PRELIMINARY QUESTION: SUPERINTENDENT OR PRINCIPAL CONTRACT?

As discussed in detail later in this opinion, the resolution of this case turns on whether the plaintiff was seeking damages for breach of her employment contract as superintendent of the school district or for breach of her employment contract as principal.

No trial transcript was filed and we have no copy of the plaintiff's employment contract before us. In its brief, the defendant argues in part that because the plaintiff was hired to perform duties as a superintendent and principal, we should consider the tenured teacher cases and the school principal cases as conclusive authority for its position that the plaintiff must first exhaust her administrative remedies under the Missouri Administrative Procedure and Review Act, RSMo Chapter 536.

We disagree because when we read the defendant's pleadings, we perceive that the school district was basing its defense on a lack of consideration because of plaintiff's alleged failure to perform reasonable services as superintendent. ¹ We find nothing in the record to indicate that the defendant terminated the plaintiff because of any alleged failure to perform her contractual duties as principal.

We reject the defendant's argument for additional reasons. We find nothing in the record to indicate that the defendant, in terminating the plaintiff, afforded the plaintiff any of the rights to which she would have been entitled as a principal. For purposes of demotion or discharge, a principal is treated as a teacher. Elrod v. Harrisonville Cass R-IX School District, 706 S.W.2d 465, 470 (Mo.App.1986). Thus, if tenured, the plaintiff would have been entitled to the safeguards and procedures of the "Teacher Tenure Act." Sections 168.102-130, RSMo 1986. Our courts have determined that the purpose of the Teacher Tenure Act is to establish strictly defined grounds and procedures for removing permanent teachers which may not be evaded or other procedures substituted therefor. Section 168.102; Beck v. James, 793 S.W.2d 416, 419 (Mo.App.1990). We find nothing in the record to indicate that the defendant utilized any of the procedures spelled out in the Teacher Tenure Act to terminate the plaintiff.

We recognize that the plaintiff may not have been tenured. The record is silent on that point. However, even if the plaintiff did not have the necessary period of service to be tenured but was being terminated as a principal, she was entitled to the rights of a probationary teacher. Section 168.126, RSMo 1986. Those rights include being furnished "a written statement definitely setting forth [her] alleged incompetency and specifying the nature thereof, in order to furnish the teacher an opportunity to correct [her] fault and overcome [her] incompetency." Section 168.126.2, RSMo 1986. The record does not indicate that the defendant complied with § 168.126 before terminating the plaintiff.

Accordingly, we find that when the defendant terminated the plaintiff's employment, it was solely a termination of her employment as superintendent. Therefore, we confine our review to the question of whether § 536.150, RSMo 1986, the uncontested case provision of the Administrative Procedure and Review Act, permits the plaintiff to bring her breach of contract action or whether she must exhaust her administrative remedies under Chapter 536.

DISCUSSION: DID THE TRIAL COURT LACK SUBJECT MATTER JURISDICTION?

In the Administrative Procedure and Review Act, Chapter 536, the General Assembly has defined "agency" as "any administrative ... body existing under the constitution or by law and authorized by law or the constitution to make rules or to adjudicate contested cases." Section 536.010(1), RSMo 1986. The appellate courts of this state have repeatedly recognized school districts as "agencies" within the meaning of the Administrative Procedure Act and have held that school board decisions concerning employee contracts were reviewable under Chapter 536. See, e.g., Ross v. Robb, 651 S.W.2d 680 (Mo.App.1983), on transfer, 662 S.W.2d 257 (Mo. banc 1983) (tenured teacher termination); Morrell v. Harris, 418 S.W.2d 20 (Mo.1967) (building commissioner in urban school district where administrative hearing was held); Franklin v. Harris, 762 S.W.2d 847, 849 (Mo.App.1989) (school principal could challenge his demotion only under a Chapter 536 review); Bell v. Board of Education of City of St. Louis, 711 S.W.2d 950, 957 (Mo.App.1986) (tenured teacher serving as principal); Brown v. Weir, 675 S.W.2d 135, 142 (Mo.App.1984) (tenured teacher).

The common thread in most of those cases is that they were "contested cases" within the meaning of the Administrative Procedure Act. Section 536.010(2). See, e.g., Brown, 675 S.W.2d at 142. By definition, a "contested case" is a "proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing." Section 536.010(2). Our supreme court has interpreted the requirement of a hearing as set forth in § 536.010(2) to mean a hearing required "by constitutional provision, statute, municipal charter provision or ordinance." State ex rel. Leggett v. Jensen, 318 S.W.2d 353, 356 (Mo. banc 1958).

The "Teacher Tenure Act," §§ 168.102-130, RSMo 1986, includes provisions which require that the legal rights of permanent teachers concerning termination of their employment contracts be decided only after a hearing before the school board. Sections 168.116 and 168.118. The Act evidences a legislative intent to provide substantive and procedural safeguards with respect to tenured teachers. Lindbergh School District v. Syrewicz, 516 S.W.2d 507, 512 (Mo.App.1974). School principals are not excluded from the teacher tenure law, Elrod, 706 S.W.2d at 470, and when the employment contracts of school principals are at issue, the Administrative Procedure Act applies. Bell, 711 S.W.2d 950. It is clear that because of the grounds and procedures spelled out in the Teacher Tenure Act, disputes concerning termination of the contracts of teachers and principals are "contested cases" within the meaning of Chapter 536.

In support of its claim that a review by the Circuit Court following compliance with Chapter 536 procedures was plaintiff's exclusive remedy, the defendant cites various cases where the disputes involved the contracts of tenured teachers. Such cases do not lend any support to the defendant's position because school superintendents are not included in the Teacher Tenure Act. Indeed, by its express terms, superintendents are excluded from the protection of that act. Section 168.104(7), RSMo 1986. ² The school board's authority to hire superintendents is found in § 168.201, RSMo 1986, ³ and that section is not part of the Teacher Tenure Act. In sharp contrast with the procedures and grounds which the legislature provided in the Teacher Tenure Act (§§ 168.102 to 168.130) for handling disputes involving the contracts of tenured teachers, the general assembly has enacted no legislation providing procedures and grounds for termination of fixed-term superintendents' contracts or for the contracts of other non-teaching personnel. There being no hearing required by law within the definition of § 536.010(2) regarding school board decisions to terminate the contract of employment of a superintendent, any judicial review of that decision under Chapter 536 would be review of an "uncontested" case. ...