Meinhold v. Clark County School Dist. Bd. of School Trustees of Clark County School Dist.

• Decision Date: 14 February 1973
• Docket Number: No. 6811,6811
• Citation: 89 Nev. 56,506 P.2d 420
• Parties: Alvin R. MEINHOLD, Appellant, v. The CLARK COUNTY SCHOOL DISTRICT BOARD OF SCHOOL TRUSTEES OF the CLARK COUNTY SCHOOL DISTRICT et al., Respondents.
• Court: Nevada Supreme Court

Page 420

506 P.2d 420

89 Nev. 56

Alvin R. MEINHOLD, Appellant, v. The CLARK COUNTY SCHOOL DISTRICT BOARD OF SCHOOL TRUSTEES OF the CLARK COUNTY SCHOOL DISTRICT et al., Respondents.

No. 6811.

Supreme Court of Nevada.

Feb. 14, 1973.

Rehearing Denied March 29, 1973.

Robert N. Peccole, Las Vegas, for appellant.

Robert L. Petroni, Las Vegas, for respondents.

OPINION

BATJER, Justice:

This appeal is taken from an order of the district court dismissing appellant's petition for a writ of certiorari. That order of the district court had the effect of affirming the action of the Clark County Board of School Trustees (hereinafter referred to as the 'board') in refusing to renew an employment contract for the appellant, a teacher in the Clark County School District.

For several alleged reasons, including unprofessional conduct, insubordination, inadequate performance and failing to comply with such reasonable requests as the board may prescribe, the appellant was notified in March of 1971 that his contract with the Clark County School District would not be renewed for the 1971--72 school year. The notice of dismissal was given pursuant to the requirements of NRS 391.312 to 391.3196, inclusive.

The appellant requested a hearing before a panel of the professional review committee (NRS 391.316--391.3195). That panel upheld the recommendation that the appellant's contract not be renewed. The appellant then sought relief from the board and the board also approved the recommendation.

The district court in reviewing the determination of the board was limited to a review of the record of the evidence presented to the board to determine if it had exceeded its jurisdiction and whether there was cause to refuse to rehire the appellant. NRS 34.090, Luc v. Oceanic Steamship Co., 84 Nev. 576, 446 P.2d 870 (1968); State ex rel. Richardson v. Bd. of Regents, 70 Nev. 144, 261 P.2d 515 (1953); Richardson v. Bd. of Regents, 70 Nev. 347, 769 P.2d 265 (1954).

Unlike Richardson v. Bd. of Regents, supra, which was an original proceeding in certiorari to review the action of the board of regents of the University of Nevada, this is an appeal from an order of the district court denying certiorari. When the determination of an inferior tribunal, in this case the board of trustees, is challenged by certiorari, the function of this court is indentical to that of the district court. Cf. Barnum v. Williams, 84 Nev. 37, 436 P.2d 219 (1968); Nevada State Bd. Chiropractic Exam'rs. v. Babtkis, 83 Nev. 385, 432 P.2d 498 (1967); Miller v. Munger, 88 Nev. 405, 498 P.2d 1336 (1972); Miller v. West, 88 Nev. 105, 493 P.2d 1332 (1972).

The appellant does not contend that there was any defect in the notice of non-renewal of his contract, given pursuant to NRS 391.312--391.319, ¹ but alleges that he was not notified in accordance with Clark County School District regulation 4413(f). ² On this basis he challenges the entire proceedings and specifically the jurisdiction of the board to conduct a hearing and approve the recommendation of non-renewal.

1. Although a challenge to jurisdiction may be raised at any time, (Stock Growers and Rancher's Bank v. Milisich, 48 Nev. 373, 233 P. 41 (1925); Pershing Quicksilver Co. v. Thiers, 62 Nev. 382, 152 P.2d 432 (1944); Provenzano v. Long, 64 Nev. 412, 183 P.2d 639 (1947)), it cannot be based upon a mere conclusion but must be supported by competent evidence. Both the district court and this court must confine review to the facts contained in the record. Clark County School District regulation 4413(f) was never introduced into evidence at any point in the proceedings and is not in the record, although it is set out in appellant's brief and is referred to in respondent's brief. In Lindauer v. Allen, 85 Nev. 430, 456 P.2d 851 (1969), we said: '. . . (F)acts in the briefs of counsel will not supply a deficiency in the record.' Mitchell v. Bromberger, 2 Nev. 345 (1866); Wilson v. Wilson, 55 Nev. 57, 24 P.2d 317 (1933); A Minor v. State, 85 Nev. 323, 454 P.2d 895 (1969); Lee v. Sheriff of Clark County, 85 Nev. 379, 455 P.2d 623 (1969); Jernigan v. Sheriff of Clark County, 86 Nev. 387, 469 P.2d 64 (1970); Fenkell v. Fenkell, 86 Nev. 397, 469 P.2d 701 (1970).

The appellant further contends that: (1) Notice of non-renewal of contract was given by a deputy superintendent of the school district rather than the superintendent as required by NRS 391.317; that (2) the appellant was not adequately informed in advance of the board hearing of specific facts which supported the charges against him; (3) he was not admonished regarding the alleged violations prior to notice of non-renewal nor was he allowed sufficient time for improvement as required by NRS 391.313; (4) he was never notified of, nor was he informed as to the availability of rules of procedure adopted by the State Board of Education and applicable to hearings conducted by boards of trustee of school districts; and (5) illegal evidence was introduced before the board in the nature of memos, reports and written documents taken from the appellant's personnel file.

2. The appellant participated fully in the hearing before the board and the alleged procedural errors were never raised at that hearing but were raised for the first time in his brief filed with the district court. It must be deemed that they have been waived if in fact they ever existed. Chiatovich v. Young, 61 Nev. 286, 127 P.2d 218 (1942). In any event, none of the alleged errors go to the question of jurisdiction or cause.

3. The appellant also claims that he was denied due process of law when the president of the board refused to allow him to reopen his case is order to call witnesses. At the conclusion of his presentation the appellant was specifically asked if he had any other witnesses. He told the president of the board that he had none and the president proceeded with the hearing. Thereafter the appellant interrupted and indicated that he wished to call certain persons who were present. Now, he contends that he was denied due process when he was precluded from reopening his case. He never revealed the identity of the prospective witnesses, nor did he make an offer of proof to indicate what testimony might have been elicited. We have nothing before us upon which to determine whether he was in any way prejudiced. The burden is upon the appellant to demonstrate from the record that he has been prejudiced by the claimed error. Tobin v. Seaborn, 58 Nev. 432, 75 P.2d 359, 82 P.2d 746 (1938). In Re Gamble, 244 N.C. 149, 93 S.E.2d 66 (1956).

Where the record fails to show what an appellant expected to prove by the testimony of a witness, no prejudice is shown and none will be presumed. Grosjean v. Spencer, 258 Iowa 685, 140 N.W.2d 139 (1966); In Re Gamble, supra; Barringer v. Weathington, 11 N.C.App. 618, 182 S.E.2d 239 (1971); Shaver v. Shaver, 478 S.W.2d 871 (Tex.Civ.App.1972); 4 C.J.S. Appeal and Error § 291; 5 Am.Jur.2d Appeal and Error, § 604. If a litigant fails to disclose to the trier of fact the nature of the testimony sought to be offered it is not error for the trier of fact to refuse to allow the litigant the opportunity to introduce further testimony after he has rested his case. United Hardware-Furniture Co. v. Blue, 59 Fla. 419, 52 So. 364 (1910). Here upon the entire record it appears that the appellant was accorded full due process of law.

4. Finally the appellant contends that the evidence presented to the board did not, as a matter of law, support a finding of cause for non-renewal of his contract.

The exhibits, together with some testimony by the school district's witnesses, and the testimony of the appellant ³ before the board clearly revealed that appellant had informed his daughters, who were students at the school where he taught, that they need not attend school if they were not so inclined and as a result they were absent a substantial part of the time, resulting in action by the civil authorities.

In support of his position that, as a matter of law, the evidence did not support the board's conclusion and recommendation, the appellant relies on Richardson v. Board of Regents and Boswell v. Bd. Mrd. Ex., 72, Nev. 20, 293 P.2d 424 (1956). Although the Richardson case tends to support the appellant's contention with reference to some of the other charges levide against him, it does not support his position in regards to the charge of unprofessional conduct because Richardson was not accused of unprofessional conduct. In Boswell v. Bd. of Med. Ex., supra, Boswell was charged with unprofessional conduct, but that case can be distinguished because the charge was based entirely upon extremely harsh criticism levied against other doctors and members of the medical profession in his community. There this Court said: 'It has never been held that the public health, safety or morals requires protection through the suppression of criticism of individual doctors or criticism of the medical profession as a whole, no matter how harsh the terms in which such criticism is expressed.' See Pickering v. Board of Education, infra. Here the unprofessional conduct was based in part upon the appellant's conduct in refusing to require his daughters to attend school in defiance of the laws of this state. NRS 392.100-392.220. We believe this to be sufficient cause to support the board's finding of unprofessional conduct. Without citing any authority the appellant contends that the grounds for dismissal specifically charged against the appellant are without defined standards and guidelines and are constitutionally vague and in violation of fundamental due process. In Moore v. Board of Trustees this court adopted with approval the language from in In re Mintz, 233 Or. 441, 378 P.2d 945, 948 (1963): '. . . (T)he variety of forms which unprofessional conduct may take makes it infeasible to attempt to specify in a statute or regulation all of the acts which come within the meaning of the term....