Pavlik v. CHINLE UNIFIED

Decision Date11 March 1999
Docket NumberNo. 1 CA-CV 98-0203.,1 CA-CV 98-0203.
PartiesSteve PAVLIK, Plaintiff-Appellee, v. CHINLE UNIFIED SCHOOL DISTRICT NO. 24; Rose Martinez, President of the Governing Board of the Chinle Unified School District No. 24, in her official capacity; Verna Salabya, member of the Governing Board of the Chinle Unified School District No. 24, in her official capacity; Virgil Brown, member of the Governing Board of the Chinle Unified School District No. 24, in his official capacity; and Peggy Scott, member of the Governing Board of the Chinle Unified School District No. 24, in her official capacity, Defendants-Appellants.
CourtArizona Court of Appeals

Mangum, Wall, Stoops & Warden, P.L.L.C. by Stephen K. Smith, Flagstaff, for Defendants-Appellants.

Hobson & Ringler by Patricia L. Carpenter and William R. Hobson, Tempe, for Plaintiff-Appellee.

OPINION

BERCH, Judge.

¶ 1 Chinle Unified School District Number 24 appeals from a trial court decision reinstating Steve Pavlik, a high school teacher whose employment was terminated by the School District's Governing Board. We reverse the trial court's decision and set aside the order of reinstatement.

FACTS AND PROCEDURAL HISTORY

¶ 2 Steve Pavlik taught at Chinle High School for twenty years. In the fall of 1995, the superintendent of the Chinle School District learned of allegations that Pavlik had behaved inappropriately toward some female students.

¶ 3 The superintendent immediately placed Pavlik on paid administrative leave and sent him the following memorandum:

SUBJECT: PLACEMENT ON ADMINISTRATIVE LEAVE WITH PAY
Allegations have been made about your conduct as a Teacher that raise serious concern. You are being placed on administrative leave with pay effective immediately. The purpose of the administrative leave is to enable the district to investigate the complaints against you and to determine what action, if any, is required. You will be notified of the district's conclusions and any proposed disciplinary action when the investigation has been completed pursuant to the procedures set forth in District Policy GCPD (copy attached).
While you are on administrative leave you may attend school functions where members of the public are invited in the same manner and under the same terms and conditions as other members of the public. You may pick up your paychecks (unless you have direct deposit) each pay day at the Payroll office in the district office complex. Other than the above exceptions, you are not to contact students or school personnel other than the High School Principal or be on school property without permission.
If you have any questions regarding this letter or your status while you are on Administrative Leave, you may call Ben Wade, Chinle High School Principal, at....

¶ 4 On December 4, 1995, Pavlik was notified that the subject of his possible dismissal was on the agenda for the Board's December 6, 1995, meeting. Pavlik's attorney requested that the matter be deferred until Pavlik had received formal notice of the charges and had an adequate chance to confer with counsel, file a response, and prepare his defense. The District agreed and gave Pavlik a statement of the charges and continued the Board meeting to December 19, 1995. Pavlik filed a written response to the charges in which he admitted many of the facts alleged, but took issue with their gravity.

¶ 5 At the December 19 meeting, the Board accepted the recommendation to terminate Pavlik's employment and notified Pavlik of this action. Pavlik requested a hearing before the Board. At that hearing, which was held on February 8 and 9, 1996, Pavlik presented thirteen witnesses and several exhibits, and his counsel made arguments on his behalf. After taking the matter under advisement, the Board found, among other things, that Pavlik had engaged in verbal and physical conduct of a sexual nature that created an intimidating or offensive environment for students. The Board sustained the recommendation that Pavlik be terminated.

¶ 6 Pavlik filed a complaint in superior court seeking judicial review of the Board's action. The trial court voided the Board's action, concluding that the Board had a pecuniary interest in the outcome of the decision because if it had not upheld Pavlik's termination, the District would have been liable for Pavlik's witness and attorney fees. The court also concluded that the Board had acted arbitrarily by placing Pavlik on administrative leave before it had furnished him a statement of the charges because failing to give notice of the charges had prejudiced Pavlik's ability to defend himself. The District appealed.

DISCUSSION

¶ 7 At the time of Pavlik's hearing, Arizona statutes required that the governing board of a school district hear and determine teacher termination disputes.1 See Ariz.Rev.Stat. Ann. ("A.R.S.") § 15-541 (1991). The board must pay the expenses of any hearing and, if it decides that a teacher should not be terminated, it must pay all reasonable witness and attorney fees incurred by the teacher. See A.R.S. § 15-542(A) (1991). Pavlik argues that "this significant additional expenditure [for witness and attorney fees] can be avoided by a vote which terminates the teacher." This, he argues, creates "actual bias" on the part of the Board members.

A. Proceeding Before the Board

¶ 8 Pavlik never objected to proceeding before the Board and first raised the bias issue in superior court. Generally, a failure to raise an issue before an administrative tribunal precludes judicial review of that issue unless it is jurisdictional. See DeGroot v. Arizona Racing Comm'n, 141 Ariz. 331, 340, 686 P.2d 1301, 1310 (App.1984)

. An exception to the general rule, however, allows us to review the competence of a board to hear a dispute brought before it. See Rouse v. Scottsdale Unified Sch. Dist., 156 Ariz. 369, 371, 752 P.2d 22, 24 (App.1988) (holding that determining a board's competence to review an administrative hearing is "akin to a jurisdictional question" and thus is reviewable by an appellate court even though not raised before the board).

¶ 9 The District argues that Pavlik's failure to raise his bias challenge before the Board has deprived this court of the facts necessary to resolve the issue. And it is true that the record contains no evidence regarding whether Board members are paid for their services, whether the payment of witness and attorney fees to Pavlik would affect any Board member personally, whether the Board members were aware of the fee-shifting statute, and whether, given the size of the District's budget, the payment of fees would affect the budget or the decision. The District benefits from the silent record, however, because Pavlik bears the burden of showing that he was denied due process. See McClead v. Pima County, 174 Ariz. 348, 352, 849 P.2d 1378, 1382 (App.1992)

(one challenging the constitutionality of a statute bears the burden of proving it is unconstitutional beyond a reasonable doubt).

B. The Board's Alleged Bias

¶ 10 Pavlik claimed, and the trial court concluded, that the Board members had "a pecuniary interest in the outcome" of the case, and that the potential liability for witness and attorney fees "provide[d] a pecuniary interest in the outcome of the decision which creates an appearance of partiality that violates due process." The trial court held, in effect, that A.R.S. section 15-542, the statute requiring the payment of fees, necessarily gave the Board members a pecuniary interest so substantial as to invalidate its decision to terminate a teacher for misconduct. Since school boards are statutorily charged with the duty to make these personnel decisions, the decision effectively renders unconstitutional part of the statutory scheme for reviewing teacher terminations. We disagree that the potential liability for attorneys' fees created such a direct or substantial interest that it violated Pavlik's constitutional rights.

¶ 11 We begin our analysis by noting that the trial court failed to accord proper weight to two firmly established principles. First, statutes are presumed to be constitutional and unconstitutionality must be demonstrated beyond a reasonable doubt. See Samaritan Health Sys. v. Superior Court, 194 Ariz. 284, ¶ 21, 981 P.2d 584, ¶ 21 (App.1998); Arizona Downs v. Arizona Horsemen's Found., 130 Ariz. 550, 554, 637 P.2d 1053, 1057 (1981). Second, adjudicators are presumed to be fair and may be disqualified only upon a showing of actual bias; mere speculation regarding bias will not suffice. See Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975)

; Martin v. Superior Court, 135 Ariz. 258, 260, 660 P.2d 859, 861 (1983); Rouse, 156 Ariz. at 374,

752 P.2d at 27. The party asserting bias bears the burden of rebutting the presumption of fairness and establishing a disqualifying interest. See State v. Jeffers, 135 Ariz. 404, 427, 661 P.2d 1105, 1128 (1983); Wolkenstein v. Reville, 694 F.2d 35, 42 (2d Cir.1982). Pavlik did not meet these burdens in this case.

¶ 12 The right to a "fair trial in a fair tribunal" is, of course, intrinsic to due process. United States v. Superior Court, 144 Ariz. 265, 280, 697 P.2d 658, 673 (1985) (quoting In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955)). Every person is entitled to receive a fair administrative hearing and have a decision rendered by an impartial decisionmaker. See Rouse, 156 Ariz. at 371,

752 P.2d at 24 (citing Goldberg v. Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)).

¶ 13 Due process is violated if the decisionmaker's situation—in this case, the requirement to pay attorneys' fees—would tempt "the average [Board member] ... to forget the burden of proof ... or ... might lead him not to hold the balance nice, clear, and true between the state and the accused." Ward v. Village of Monroeville, 409 U.S. 57, 60, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972...

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