Rininger v. Bennett County School Dist., s. 17189

• Decision Date: 09 January 1991
• Docket Number: 17202,Nos. 17189,s. 17189
• Citation: 468 N.W.2d 423,67 Ed.LawRep. 276
• Parties: 67 Ed. Law Rep. 276 Clifford RININGER, Plaintiff and Appellee, v. BENNETT COUNTY SCHOOL DISTRICT, Respondent and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 423

468 N.W.2d 423

67 Ed. Law Rep. 276

Clifford RININGER, Plaintiff and Appellee, v. BENNETT COUNTY SCHOOL DISTRICT, Respondent and Appellant.

Nos. 17189, 17202.

Supreme Court of South Dakota.

Considered on Briefs Jan. 9, 1991.

Decided April 10, 1991.

Linda Lea M. Viken, Finch, Viken, Viken and Pechota, Rapid City, for plaintiff and appellee.

Dennis H. Hill, Costello, Porter, Hill, Heisterkamp & Bushnell, Rapid City, for respondent and appellant.

WUEST, Justice.

The Bennett County School District appeals the circuit court judgment affirming the decision of the South Dakota Department of Labor that Cliff Rininger was entitled to reinstatement to a teaching position and damages. We affirm.

Cliff Rininger was a continuing contract teacher in the Bennett County School District. He was elementary education certified and taught grade levels six through eight while at the District. With some reservation, Rininger signed an employment contract with the District for the 1981-82 school year. Subsequently, he requested and was granted a leave of absence under School Board policy.

Rininger then accepted a teaching position with a school system in Alaska. In December 1981, he requested the District send his income tax forms to Alaska. In April 1982, Rininger filed written notice of his intent to return to the Bennett District. Although positions were open for which Rininger was qualified, the School Board refused to hire him. Rininger then contacted his union representative and attempted to file a grievance with the Board. The Board informed Rininger that he could not file a grievance because he was no longer considered an employee of the District. Rininger attempted to appeal this decision to circuit court under SDCL ch. 13-46; however, the sheriff failed to timely serve the necessary papers and the appeal was dismissed. Rininger then appealed to the Department of Labor, Labor and Management Division.

The Board maintains that Rininger deceived them as to the reasons for his leave of absence. According to Leo Gannon, District Superintendent, Rininger requested the leave of absence because his father had died recently and he wanted to be home with his mother. Superintendent Gannon told the School Board that this was the reason for Rininger's requested leave. Rininger submits, however, that he asked for the leave for personal reasons, based upon a personal conflict he was having with a teacher's aide employed by the District. Gannon was aware of the difficulties Rininger was having with the teacher's aide. Rininger did not know this staff member would not be returning to the District in her capacity as a teacher's aide in the 1981-82 school year. Although Rininger was considering employment in Alaska prior to approval of his leave of absence, he never communicated this to Gannon.

At Gannon's request, Rininger put his leave request in writing, but did not state his reasons for requesting leave. Rininger was never told there were conditions or limits on his leave of absence, or that he was prohibited from teaching while on leave. Rininger's leave of absence was never rescinded by the Board and he was never advised that he had violated the terms of his leave until he was refused employment upon returning to the District.

The Department of Labor determined the leave policy was "mandatory" and Rininger was therefore entitled to reinstatement with the School District. The Department ordered the District to pay Rininger the difference between the salary he would have received if teaching in the District and the salary he actually received while this action was pending, plus interest.

This decision was appealed by the District to circuit court. The court determined the leave policy was not "mandatory" and remanded the case to the Department for findings as to whether Rininger deceived Superintendent Gannon and the Board in his request for leave. If Rininger deceived the Board, such deceit would constitute a breach of contract, see SDCL 13-43-15, and Rininger would no longer be considered an employee of the District. However, if there was no deceit, the Board's refusal to hire Rininger would be in error. The Department was also to determine the amount of prejudgment interest, if any, in the event it was determined Rininger did not deceive Gannon.

After rehearing, the Department concluded that Rininger did not deceive the Superintendent or the Board and was therefore entitled to personal leave and employment upon return to the District. It further concluded that Rininger was entitled to prejudgment interest in the amount of $17,725.20.

This decision was appealed to circuit court by the District. The court affirmed the Department's determination that Rininger was entitled to reinstatement. The court also held he was entitled to prejudgment interest calculated incrementally based upon his contract payment periods, with judgment interest to run from July 18, 1986.

The District appeals to this court and raises four issues:

I. Whether the Department improperly allocated and applied the burden of proof;

II. Whether Rininger deceived the School District in his request for a leave of absence, thereby breaching his contract and terminating his status as a tenured teacher;

III. Whether Rininger is entitled to damages and interest; and

IV. Whether Rininger's grievance was timely.

Rininger raises by notice of review:

V. Whether the trial court erred by finding the leave policy was "permissive" and reversing the Department's decision.

We deem it unnecessary to reach this notice of review issue under our holding.

I.

On remand from the circuit court to determine whether Rininger deceived Superintendent Gannon, the Department concluded that "[t]he District's seeking to get out of its contractual obligation to Rininger [by asserting deceit] represents an affirmative defense that the District must prove by a preponderance of the evidence." The circuit court affirmed this ruling. The District contends this is the wrong burden of proof and asserts the party alleging a violation (Rininger) carries the burden, not the nonmoving party.

In South Dakota Board of Regents v. Heege, 428 N.W.2d 535, 542 n. 3 (S.D.1988), we noted that in an unfair labor practice action before the Department of Labor under SDCL ch. 3-18 and ch. 1-26, the burden of proof is on the party alleging the violation. We cited General Drivers and Helpers Union v. Brown County, 269 N.W.2d 795, 798-99, 803 (S.D.1978) and 51A C.J.S. Labor Relations Sec. 561 as authority for this allocation of the burden of proof under SDCL ch. 3-18 and Gourley v. Board of Trustees, 289 N.W.2d 251, 253 (S.D.1980) as authority for actions under SDCL ch. 1-26. Rininger acknowledges in his brief that this is, indeed, a grievance brought pursuant to SDCL ch. 3-18 and ch. 1-26. We thus apply the burden of proof acknowledged in Board of Regents, supra.

Rininger's leave of absence was valid on its face: such leaves are authorized by School Board policy, Rininger's request was presented to and approved by the Board, Rininger was never informed he had violated the terms of his leave, and the Board took no action to rescind or otherwise invalidate it. Rininger requested reinstatement, but was refused employment for positions which were vacant and for which he was qualified. Under these circumstances, we hold that Rininger has carried his burden of proving his grievance. He has established he was on valid leave and was refused employment upon return. We therefore agree with the Department that the District's allegation of deceit constitutes an affirmative defense which must be proven by a preponderance of the evidence. See Ainsworth v. Erck, 388 N.W.2d 886 (S.D.1986); Jennings v. Jennings, 309 N.W.2d 809 (S.D.1981); General Elec. Credit Corp. v. M.D. Aircraft Sales, Inc., 266 N.W.2d 548 (S.D.1978); Aschoff v. Mobil Oil Corp., 261 N.W.2d 120 (S.D.1977).

II.

The District challenges the Department's finding that Rininger did not deceive the Board in connection with his request for a leave of absence. The District submits it carried its burden of proving deceit as an affirmative defense and therefore the Department's finding to the contrary is clearly erroneous.

Questions of fraud and deceit are generally questions of fact. Laber v. Koch, 383 N.W.2d 490 (S.D.1986). In an administrative appeal, deference is accorded an agency's factual determination, and we review the record to determine whether the agency's findings of fact are clearly erroneous in light of all the evidence in the record. SDCL 1-26-36; Karras v. State, Dep't of Revenue, 441 N.W.2d 678, 679 (S.D.1989); Permann v. South Dakota Dept. of Labor, Unemployment Ins. Div., 411 N.W.2d 113, 115-17 (S.D.1987). In applying the clearly erroneous standard, the appellate court determines whether, on the entire evidence, it is left with a definite and firm conviction that a mistake was made. In re Estate of Hobelsberger, 85 S.D. 282, 289, 181 N.W.2d 455, 459 (1970). We find support in the record for the Department's finding.

The Department made two factual inquiries with respect to deceit: (1) whether Rininger told Gannon he wanted the leave of absence to stay with his mother, and (2) whether Rininger's Alaskan employment was so certain before leave was granted that he was under an affirmative duty to inform the District. The Department found no evidence which made Gannon's testimony more credible than Rininger's, or vice versa. The fact that Gannon, in furtherance of his duties as Superintendent, told the School Board that Rininger wanted leave to be with his mother tends to refute the Department's finding. However, we are not left with a definite and firm conviction the Department was mistaken. The evidence on either side of this issue was credible and capable of supporting inferences leading to either conclusion. The burden of proof is not sustained when the probabilities are equal. King v. Johnson Bros. Const. Co., 83 S.D. 69, 74, ...