McClanahan v. Cochise College, 2

• Decision Date: 30 September 1975
• Docket Number: CA-CIV,No. 2,2
• Parties: Donald McCLANAHAN and Phyllis McClanahan, husband and wife, Appellants, v. COCHISE COLLEGE, State of Arizona, et al., Appellees. 1838.
• Court: Arizona Court of Appeals

Page 744

540 P.2d 744

25 Ariz.App. 13

Donald McCLANAHAN and Phyllis McClanahan, husband and wife, Appellants, v. COCHISE COLLEGE, State of Arizona, et al., Appellees.

No. 2 CA-CIV 1838.

Court of Appeals of Arizona, Division 2.

Sept. 30, 1975.

Rehearing Denied Nov. 13, 1975. See 542 P.2d 426.

W. Edward Morgan, Tucson, for appellants.

Bruce E. Babbitt, Atty. Gen., by John S. O'Dowd, Asst. Atty. Gen., Tucson, for appellees.

OPINION

HOWARD, Chief Judge.

We are called upon to decide whether the trial court erred in granting appellees' motion to dismiss for lack of jurisdiction and failure to state a claim.

The complaint alleged the following facts: Appellant Donald McClanahan was a continuing teacher having first been employed as a fulltime classroom teacher and subsequently as a dean of occupational instruction. His contract had been renewed for more than four consecutive years of employment with Cochise College. We was originally employed as a teacher duly certified under the appropriate laws of the State of Arizona and received a contract for the academic year 1972--73 as dean of occupational instruction. His total tenure at the college was in excess of eight years.

On January 9, 1973, appellant was given until February 1, 1973, to submit his resignation as dean of occupational instruction. On January 19, 1973, the governing board of Cochise College gave him notice that his services with the institution would be terminated. In accordance with Policy 2019 of the Cochise College Governing Board Manual, and in particular in accordance with Policy 2006, he made a request for a hearing. Prior to the hearing set for April 16, 1973, appellant's counsel was informed that appellees would not allow faculty witnesses to be called to testify in appellant's behalf. His attorney was also notified that at such hearing the services of a court reporter would not be provided, nor would a transcript of the proceedings be made available. Testimony of witnesses was not to be given under oath.

Appellant brought an action in the United States District Court for the District of Arizona which ordered a hearing before the Governing Board of Cochise College. This hearing was held in the months of January and March of 1974. On May 29, 1974, the Board terminated appellant for cause.

The complaint further alleged that Donald McClanahan's rights were violated in that there were not sufficient grounds to dismiss him; that he was entitled to a hearing prior to the determination of dismissal; that the hearing failed to comply with procedural due process requirements and the procedures required by the Arizona State Teachers Tenure Act and the Arizona Administrative Procedure Act.

In the prayer for relief, appellants asked that Donald McClanahan be granted, in the superior court, a hearing de novo; that he be reinstated as an administrator or, in the alternative, as a teacher; that he be paid his back salary with interest to date of payment; that they receive reasonable attorney's fees occasioned in their defense, both at the hearing and in the federal court action and this action; that they receive reasonable damages for the pain and suffering occasioned by the conduct of the defendants and that they be compensated for the damages done to appellant Donald McClanahan's professional reputation.

In their motion to dismiss the complaint for lack of subject matter jurisdiction, appellees contended that Title 12, Chapter 7, Article 6, Judicial Review of Administrative Decisions, Arizona Revised Statutes, does not apply to decisions of a governing board of a junior college. The motion further contended that the Arizona Teachers Tenure Act, as amended, A.R.S. Secs. 15--251 et seq., was not applicable; the complaint failed to allege acts sufficient to invoke special action jurisdiction; appellant Donald McClanahan lacked standing to claim he was terminated as a teacher since he was an administrative officer and had no right to a hearing prior to termination of his services. Attached to the motion to dismiss was a copy of the decision of the governing board of Cochise College together with copies of sections 2018 and 2019 of the Cochise College Governing Board Manual.

In their response to appellees' motion to strike and/or dismiss, appellants answered all of appellees' contentions except the contention that the complaint failed to state a claim against the governing board members individually.

A.R.S. Secs. 12--901 et seq., provide for judicial review of administrative decisions. Section 12--901 provides:

'In this article, unless the context otherwise requires:

1. 'Agency' or 'administrative agency' means every agency, board, commission, department or officer authorized by law to exercise rule-making powers or to adjudicate contested cases, whether created by constitutional provision or legislative enactment, but does not include an agency in the judicial or legislative departments of the state government, and does not include any Political subdivision, municipal corporation, or agency thereof. (Emphasis added)

Section 12--902(A), as amended, provides:

'This article applies to and governs every action to review judicially a final decision of an administrative agency except public welfare decisions pursuant to title 46, or where the act creating or conferring power on an agency or a separate act provides for judicial review of the agency decisions and prescribes a definite procedure for the review.'

A.R.S. Sec. 12--910 provides that the trial in superior court shall be a trial de novo if it is demanded in the complaint or answer of a defendant other than the agency and if no hearing was held by the agency, or the proceedings before the agency were not stenographically reported so that a transcript might be made.

Is Cochise College, and its governing board, a political subdivision of the state? The attributes which are generally regarded as distinctive of a political subdivision are that it exists for the purpose of discharging some function of local government, that it has a prescribed area, and that it possesses authority for subordinate self-government by officers selected by it. Dugas v. Beauregard, 155 Conn. 573, 236 A.2d 87 (1967). Junior college districts may be organized for a single county, or for two or more contiguous counties. A.R.S. Sec. 15--666. When a proposed district has been approved by the State Board of Directors for Junior Colleges and has been approved by the qualified electors of the county, the state board then establishes five precincts in the junior college district for the election of district governing board members from each precinct. A.R.S. Sec. 15--676.01. A.R.S. Sec. 15--679 confers the following powers and duties on the district board:

'A. Except as otherwise provided, the district board shall:

1. Maintain the community college for a period of not less than eight months in each year, and if the funds of the district are sufficient, maintain the college for a longer period.

2. Enforce the courses of study and the use of textbooks prescribed and adopted by the state board.

3. Visit the community college and examine carefully into its management, conditions and needs.

4. Exclude from the college all books, publications or papers of a sectarian, partisan, or denominational character intended for use as textbooks.

5. Appoint and employ a president or presidents, vice presidents, deans, professors, instructors, lecturers, fellows, and such other officers and employees it deems necessary.

6. Determine the salaries of persons appointed and employed.

7. Remove any officer or employee when in its judgment the interests of education in the state so require.

8. Award degrees, certificates and diplomas upon the completion of such courses and curriculum as it deems appropriate.

9. Appoint, if deemed necessary by the district board, security officers who shall have the authority and power of peace officers for the protection of persons and property under the administration of the district board.

10. Receive, hold, make and take leases of and sell personal property for the benefit of the community college district under its jurisdiction.

B. The district board may administer trusts declared or created for the district, and receive by gift, devise or bequest, and hold in trust or otherwise, property wheresoever located, and when not otherwise provided, dispose of such property for the benefit of the district, provided, with respect to real property, that the state board has consented to the disposition thereof.'

Under Sec. 15--686:

'E. A district, with the consent of the state board, may conduct an election to determine whether or not bonds shall be issued and sold for the purpose of paying its share of the expenditures incurred for capital outlay. . . .'

In Sorenson v. Superior Court, 31 Ariz. 421, 425, 254 P. 230 (1927), the court in holding that the Union High School District was a political subdivision quoted with approval from the case of Lydecker v. Commissioners, 41 N.J.L. 154:

"These distinctive marks are, I think, that they embrace a certain territory and its inhabitants, organized for the public advantage, and not in the interest of particular individuals or classes; that their chief design is the exercise of governmental functions, and that to the electors residing within each is, to some extent, committed the power of local government, to be wielded either mediately or immediately, within their territory, for the peculiar benefit of the people there residing. Bodies so constituted are not merely creatures of the state, but parts of it, exerting the powers with which it is vested for the promotion of those leading purposes which it was intended to accomplish, and according to the spirit which actuates our republican system."

We hold that a community college district is a political subdivision of the state and that A.R.S. Secs. 15--901 et seq., are not applicable.

The only remaining issue is whether...