McConnell v. Alamo Heights Independent School Dist.

• Court: Texas Civil Court of Appeals
• Writing for the Court: KLINGEMAN
• Citation: McConnell v. Alamo Heights Independent School Dist., 576 S.W.2d 470 (Tex. Ct. App. 1978)
• Decision Date: 29 December 1978
• Docket Number: No. 16002,16002
• Petition History: writ ref'd n.r.e.
• Parties: John S. McCONNELL, Appellant, v. ALAMO HEIGHTS INDEPENDENT SCHOOL DISTRICT, Appellee.

Page 470

576 S.W.2d 470

John S. McCONNELL, Appellant, v. ALAMO HEIGHTS INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 16002.

Court of Civil Appeals of Texas, San Antonio.

Dec. 29, 1978.

Rehearing Denied Jan. 24, 1979.

Craig L. Austin, San Antonio, for appellant.

George H. Spencer, Randolph P. Tower, Clemens, Spencer, Welmaker & Finck, San Antonio, for appellee.

OPINION

KLINGEMAN, Justice.

This is a teacher termination case. Appellant John S. McConnell brought suit in the district court of Bexar County, Texas, seeking a temporary restraining order, temporary injunction and permanent injunction requiring his reinstatement as a teacher, back pay, and attorney's fees. Both the temporary restraining order and the temporary injunction were denied after hearing. Appellant subsequently filed a motion for summary judgment which was also denied by the trial court. In a subsequent hearing the trial court, after a non-jury trial, granted appellant judgment for back pay, attorney's fees and costs for the period of appellant's suspension as a teacher from January 25, 1977, through February 8, 1977, but found that appellant was lawfully terminated by appellee, Alamo Heights Independent School District, on February 8, 1977, and denied all other relief sought by appellant, including reinstatement, back pay, attorney's fees, and costs, for the period since February 8, 1977. Appellant will sometime hereinafter be referred to as "McConnell" and appellee as "School District."

Appellant asserts seven points of error which cover the following general areas: (a) alleged violations of the Texas Open Meetings Act; (b) alleged violations of the Texas Education Code; (c) lack of proper notice; (d) denial of a jury trial; (e) application of the substantial evidence rule; and (f) alleged violations by the School District of its own rules in terminating the teacher.

McConnell was employed by the School District as a probationary teacher in September, 1972, and at that time taught vocational subjects in the high school. The School District has adopted the "continuing contract law" under the Texas Education Code, and in August, 1975, at the end of a probationary teaching period, entered into a continuing contract with McConnell, who then began teaching high school English courses. In late 1975 or early 1976 McConnell was transferred from the high school to junior school and in August, 1976, he assumed duties as a teacher of English in junior school. Apparently McConnell and the school principals had some policy differences. Both the principal and the assistant principal contend that McConnell was making excessive student disciplinary referrals to the principal's office, and noted that during the period from August, 1976, to approximately October 1, 1976, McConnell was responsible for ninety-one student referrals to the assistant principal's office for disciplinary reasons. The next highest number of disciplinary referrals from another teacher for the same period was twenty-seven. The matter of excessive referrals was discussed with McConnell by the principal and the assistant principal, and a letter was sent to him suggesting remedial actions. The problem continued, however, and according to the records of the assistant principal, as of January 24, 1977, McConnell had referred 147 student disciplinary problems to his office while the next highest teacher made only forty-three such referrals. One of the counselors observed and recorded problems and complaints relating to McConnell's handling of student discipline during this period, and there were other complaints from students, parents and other staff members.

Another problem arose with regard to McConnell's teaching of English. The principal received student, parent and faculty complaints about appellant's failure to teach English in accordance with the prescribed curriculum. McConnell was counseled on numerous occasions by the principal, assistant principal, counselor, and other personnel concerning the teaching of spelling and grammar from the State- and School District-approved textbooks, and a letter concerning his deficiencies in these areas of the curriculum was sent to him. On a number of occasions the principal or assistant principal visited McConnell's classes and wrote critical reports.

In addition, the principal received complaints from parents relating to appellant's deficiencies in grading of assignments completed in his classes. The principal examined McConnell's grade book and found it to be incomprehensible, and incomplete in comparison with the grade books of other teachers at the junior school.

On January 24, 1977, the junior school principal wrote McConnell that he was recommending to the superintendent of the School District that McConnell be terminated for reasons set forth in the letter. The reasons for such recommendation included (a) failure to comply with specific requests and directives regarding curriculum; (b) failure to maintain routine classroom management and discipline; (c) continual problems with students, teachers, parents, counselors and administrators concerning his attitude and methods. On January 25, 1977, an emergency meeting of the Board of Trustees was called, at which time the superintendent of schools recommended the immediate suspension of McConnell without pay based on the reasons stated in the principal's letter. The superintendent's recommendation in this regard was reduced to writing in the Board's minutes of said emergency meeting. On the same day, the vice-president of the Board wrote McConnell of his suspension and notified him that the Board would conduct a hearing at its next regular meeting to consider the recommendations of the superintendent to terminate appellant's contract immediately for reasons which were set forth in the letter and which have been summarized heretofore. McConnell, acting through counsel, requested a hearing before the Board on February 8, 1977. At such meeting McConnell appeared with his counsel and actively participated in such hearing.

Some of appellant's points of error overlap to some extent and we will discuss all points of error under areas hereinafter set forth.

Notice

Appellant asserts that the Board's action in terminating him was void because of alleged violations of the Texas Open Meetings Act. Tex.Rev.Civ.Stat.Ann. art. 6252-17 (Vernon Supp.1978-1979). In particular, he urges that (1) the County Clerk did not receive or post notice of the meeting until 26 hours after it occurred; (2) no notice by telephone or telegraph was given to any news media; and (3) the subject of such meeting is not disclosed in the notice.

These allegations apparently refer to the emergency meeting of January 25, 1977, which resulted in action suspending McConnell and notifying him of the Board's proposed action to terminate his employment at a subsequent meeting of the Board in February. The January 25, 1977, meeting was held at 8:00 a. m., and one of appellant's exhibits shows that the notice sent to the County Clerk was not received until January 26, 1977, at 10:22 a. m. Appellant also asserts that no notice of such meeting was given to the news media. As to the subject matter of this meeting, the agenda shown on an exhibit consists of the following recitations:

AGENDA

A. Call meeting to order

B. EXECUTIVE SESSION

1. Personnel

C. Adjourn

We agree with appellee's contention that such alleged violations are not fatal and do not render the subsequent termination void. McConnell's termination did not occur until the Board meeting of February 8, 1977, at which meeting appellant and his counsel both appeared and participated.

The statute regarding the notice to the County Clerk imposes no requirement, such as that alleged by appellant, since the meeting of January 25, 1977, was an emergency session. The pertinent section of the statute provides that in the event of an emergency meeting it shall be sufficient if the notice or supplemental notice is posted two hours before the meeting is convened. Tex.Rev.Civ.Stat.Ann. art. 6252-17, § 3A(h) (Vernon Supp.1978-1979). The Act makes no mention whatsoever of providing a copy of such notice of an emergency meeting to the County Clerk.

While no notice of the emergency meeting was given to the news media, the applicable statutory provision requires the giving of such notice if request therefor has been previously filed at the headquarters of the governmental body, and then only if the media requesting such notice consents to pay any and all expenses incurred by the governmental body in providing such special notice. Id. § 3A(e) (Vernon Supp.1978-1979). It is undisputed that no request for such notice was received from the news media.

With regard to notice of the subject matter of the emergency meeting, the notice which the School District posted merely described the purpose as relating to "Personnel," and the session did deal with personnel matters. The Education Code does not require that specific notice of such an emergency meeting be given the teacher involved. The law appears settled that the notice provisions of the Texas Open Meetings Act are subject to the substantial compliance rule. Burton v. Ferrill, 531 S.W.2d 197 (Tex.Civ.App. Eastland 1975, writ dism'd); Stelzer v. Huddleston, 526 S.W.2d 710 (Tex.Civ.App. Tyler 1975, writ dism'd).

This court in Santos v. Guerra, 570 S.W.2d 437 (Tex.Civ.App. San Antonio 1978, writ ref'd n. r. e.), has recently passed on the matter of notice under the Texas Open Meetings Act. The case involved the validity of the action of the Webb County Commissioners Court in discharging an employee. The jury found that there was a failure to post notice of the commissioners court meeting as required by the Texas Open Meetings Act, and judgment was entered on the jury verdict in favor of the employee. On appeal, this court held that the substantial compliance rule was applicable, and that under the facts of such case substantial compliance...