Nichols v. Eckert

• Decision Date: 08 January 1973
• Docket Number: No. 1572,1572
• Citation: 504 P.2d 1359
• Parties: Karen NICHOLS and Clara Johnston, Appellants, v. John ECKERT, et al., Appellees.
• Court: Alaska Supreme Court

Page 1359

504 P.2d 1359

Karen NICHOLS and Clara Johnston, Appellants, v. John ECKERT, et al., Appellees.

No. 1572.

Supreme Court of Alaska.

Jan. 8, 1973.

John R. Strachan, of Robison, McCaskey, Strachan & Hoge, Anchorage, for appellants.

Harland W. Davis, Anchorage, for appellees.

Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOOCHEVER, JJ.

CONNOR, Justice.

This case concerns the dismissal of two non-tenured teachers from their employment. The question is whether they were accorded due process of law in the proceedings which led to their dismissal. More specifically, the issues presented to us for resolution are whether the teachers were entitled to a hearing, and, if so, whether the hearing given was adequate.

Karen Nichols and Clara Johnston, both certified to teach in Alaska, were employed by the Bristol Bay Borough School District to teach during the 1970-71 school year. Nichols entered into her contract on July 2, 1970, and Johnston entered into hers on May 6, 1970. Under the terms of the contracts the appellants agreed to abide by the rules of the Alaska Board of Education. Appellants commenced performance of their teaching contracts around September 1, 1970. Appellees are the members of the Bristol Bay School Board and William Gregory, who is the Superintendent of the Bristol Bay School District.

During the afternoon of October 23, 1970, Nichols became ill and was hospitalized in Dillingham, Alaska, where she remained until October 30, 1970. She returned to Naknek, the place of her teaching assignment, on November 20, 1970. By the time she returned to teaching on November 23, 1970, she had been absent for 21 1/2 teaching days.

Johnston became ill on November 7, 1970, and was hospitalized in Anchorage, Alaska, from November 9, 1970, until November 22, 1970. She returned to Naknek, her teaching station, arriving on November 23, 1970. She had missed ten teaching days.

On the evening of November 23, 1970, both appellants were summarily dismissed from their teaching jobs by the school board. Each teacher was notified of the dismissal in separate letters signed by William Gregory. Both letters of dismissal cited AS 14.20.170(a) as authorizing the dismissal. This section provides that teachers may be dismissed only for the following cause:

'Incompetency, which is defined as the inability or the unintentional or intentional failure to perform the teacher's customary teaching duties in a satisfactory manner.'

In both letters, the reason given for dismissal was:

'In the judgment of the School Board your extended illness and the limitations imposed by the need for continuing medication and/or treatment constitutes failure to perform the teacher's customary duties in a satisfactory manner.'

In the letter to Nichols the following particulars were given as the justification for dismissal under AS 14.20.170(a)(1):

'(1) Your past and apparently continuing need for medical and/or physiatric (sic) attention.

(2) Your difficulty in getting along well with co-workers: The conflicts between yourself and the pre-school teacher over what should and should not be a part of the pre-school and Grade 1 curriculum.

(3) Your difficulty in getting along with parents of students: The conflict between yourself and the parents of students who have been exposed to First Grade materials prior to the beginning of the child's first grade instruction.'

In the letter to Johnston the particulars were listed as follows:

'(1) Your past and apparently continuing need for medical and/or psychiatric attention.

(2) The failure to disclose the fact that you were unable to complete the 1969-70 school year.

(3) The lack of flexibility you display in accomodating to the diverse needs of children. A specific example of this is exhibited in your approach to the student Scott Stewart. In light of this pupil's subsequent performance in the Naknek Ungraded Primary Program, it is apparent that you could not, or would not meet the educational needs of this late enrolling student in your class. Your evaluation of the pupil is in direct opposition to the evaluations submitted by his three present teachers. Your reluctance to accept this boy into your class may be related to the rigid and inflexible procedures cited above.

A very similar situation presents itself in regard to the, again, late enrolling Pinette child. The parents of this child feel that you have been uncooperative and uncommunicative in helping them to overcome the deficit caused by this child's enrollment.'

Prior to their dismissal the appellants were accorded no opportunity to be heard before the school board. On January 21, 1971, appellants brought an action in the superior court seeking to recover damages for breach of their employment contracts, and for violation of the due process clause of the fourteenth amendment, the due process clause of the Alaska Constitution, and the Civil Rights Act of 1871. Appellants also sought an injunction to restrain their discharge prior to a hearing of their case by the school board.

On April 24, 1971, the superior court entered an order remanding the case to the Bristol Bay Borough School Board for a hearing to determine the basis of the accusations made against the appellants in the letters of November 24, 1970. The court further ordered that appellants be given adequate notice of the hearing, that they be allowed to confront and cross-examine witnesses, that they be represented by counsel, and that the board make findings of fact and conclusions of law in order to reach a decision. Under this order the court retained jurisdiction of the matter.

When the hearing was held before the school board on April 26, 1971, the appellants' counsel attempted to call witnesses to testify for his clients, but the school board refused the request. At the conclusion of the hearing, the board reached a decision which affirmed the earlier acts of dismissal. Subsequently, on July 28, 1971, the superior court affirmed the decision of the board and stated, '(a) review of the transcript of the proceedings of the Bristol Bay Borough School Board and their findings convinces the court that their findings are supported by the record.' This appeal was taken from the superior court's ruling.

The teachers base their appeal on three major contentions: first, they were entitled to a hearing prior to their dismissal on the basis of AS 14.20.170(b), as well as the due process clauses of the United States Constitution and the Alaska Constitution; second, their dismissal was null and void because of the illegal manner in which it was accomplished; third, the decision by the school board was not supported by the evidence.

I

The appellants argue that their dismissal was improper under AS 14.20.170(b). ¹ The express language of AS 14.20.170(b) clearly lacks any indication that the legislature intended to provide a hearing prior to dismissal for cause of a nontenured teacher. First, the statutory provision is in a permissive form and allows temporary suspension during the investigation. Second, the reference to AS 14.20.180 cannot reasonably be interpreted to extend the hearing rights given to tenured teachers under that section. The distinction in treatment between the two types of teachers is quite clear from the express terms of AS 14.20.180. ² If appellants have a right to a hearing, it is not to be found in that statute.

A decision on whether the dismissal procedure followed here was constitutionally permissible must be reached by evaluating the nature of the case in light of the due process clauses of the United States Constitution and the Alaska Constitution. ³ For that clause to apply there must be state action and the deprivation of an individual interest of sufficient importance to warrant constitutional protection. ⁴ The dismissal of the appellants by the school board was clearly under color of state law. Although courts in the past have frequently held that public employees have no absolute right to a hearing on discharge, because government employment is a privilege and not a property right, ⁵ courts recently have become more inclined to consider the causes of discharge and the methods and procedures by which it is effected, especially where the discharge affects reputation and the opportunity for employment thereafter. ⁶

Any determination that appellants are entitled to due process in their dismissal is only preliminary to deciding the extent of the protection they must be accorded. The lack of precision of the due process protection was expressed by Mr. Justice Frankfurter in his concurring opinion in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 163, 71 S.Ct. 624, 644, 95 L.Ed. 817 (1951):

'(W)hat is unfair in one situation may be fair in another. . . . The precise nature of the interest that has been adversely affected, the manner in which this was done, the reasons for doing it, the available alternatives to the procedure that was followed . . . the balance of hurt complained of and good accomplished-these are some of the considerations that must enter into the judicial judgment.' (citations omitted)

In weighing these factors in the case at bar, we must consider the interests both of appellants and of the school district.

The interest of the appellants in not being dismissed without a hearing is manifest. Without an opportunity to be heard and to present their cases, they could be dismissed without good cause and with a serious charge of incompetency levied against them, a charge which is permanently on their records and a hindrance to reemployment. In any event, the dismissal of a teacher on grounds of incompetency is a serious matter. The accused teacher is desperately in need of a fair and impartial forum in which the issue may be settled.

The interests of the school district are at least two-fold. First, there is an interest in protecting students from incompetent teachers; second, there is an economic interest in...