School Dist. No. 32 in Fremont County v. Wempen, 2844

• Decision Date: 14 July 1959
• Docket Number: No. 2844,2844
• Citation: 342 P.2d 232,80 Wyo. 311
• Parties: SCHOOL DISTRICT NO. 32, IN COUNTY OF FREMONT and State of Wyoming; William Wall, Chairman of the Board; Joe Chernick, Clerk; Albert Hansen, Superintendent, Appellants (Defendants below), v. LaVeta WEMPEN, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 232

342 P.2d 232

80 Wyo. 311

SCHOOL DISTRICT NO. 32, IN COUNTY OF FREMONT and State of Wyoming; William Wall, Chairman of the Board; Joe Chernick, Clerk; Albert Hansen, Superintendent, Appellants (Defendants below), v. LaVeta WEMPEN, Appellee (Plaintiff below).

No. 2844.

Supreme Court of Wyoming.

July 14, 1959.

Moran, Hettinger & Leedy, R. Lauren Moran, Riverton, for appellants.

Spence & Hill, G. L. Spence, Riverton, for appellee.

Before BLUME, C. J., and PARKER and HARNSBERGER, JJ.

Mr. Justice HARNSBERGER delivered the opinion of the court.

In this case a lady who had been employed as a cook by the Board of Trustees of School District No. 32, in Fremont County, Wyoming, was discharged and she sued the board to recover her salary for the remaining period of the school year. The case was tried to a jury and upon its verdict the court gave her judgment amounting to $453.33. The school board appeals.

The evidence in the record seems clear and for the most part undisputed. The board's minutes show it decided to employ plaintiff as a cook for the 1956-1957 school term at a salary increase of $11.11 per month above her previous salary. This made her per month salary $151.11, or $1,360 for the term. The action of the board was communicated in writing to plaintiff by the board's school superintendent, a somewhat usual procedure, and the employee's acceptance of the offer of employment was indicated on that writing, signed by plaintiff and returned to the superintendent. The instrument as completed and as shown by an exhibit is as follows, with the exception that the lost original used the words 'First Cook' instead of the words 'Chief Cook'.

'Pavillion Public Schools

'Election

Notice

'You have been elected as Chief Cook for the 1956-1957 school term at a salary of 1360 00. Please check and sign as per your wishes below and return to the office on or before April 1, 1956. Thank you.

'X I accept.

'_____ I reject.

'/s/ Mrs. LaVeta Wempen

'Signature'

Plaintiff entered upon her duties as cook and performed the required services in a highly satisfactory manner. However, her son became involved in minor misconduct and was disciplined by the school superintendent. His punishment included the repayment of the cost of small items of school property that had been destroyed. Shortly afterwards on February 19, 1957, when the superintendent was in the school lunchroom, an occurrence growing out of the son's trouble took place between the employee and the superintendent. There is dispute as to the exact nature of this difficulty. On the one hand the superintendent contended the employee had used profane language, was loud, abusive, defiant and disrespectful. The plaintiff, however, maintained that all she did was to shove a silver dollar across the table indicating it was to pay for the damage her son had done, and that the dollar was returned by the superintendent. Undoubtedly angry words were exchanged and the dollar passed back and forth between the parties several times. After the superintendent left the scene of the altercation, he returned to the lunchroom and requested plaintiff to come to his office to discuss the matter. The employee admitted she refused to do this. The episode came to the attention of the board and the superintendent reported his version of the affair at a special meeting of the board called and held February 22, 1957. Although plaintiff was not notified of the meeting, was not present, and was given no opportunity to offer her version of the affair, the board decided to discharge her and directed the superintendent to notify plaintiff of its action. This he did by sending her the following:

'February 22, 1957

'Mrs. LaVeta Wempen

'Pavillion, Wyoming

'Dear Mrs. Wempen:

'The Board of Education of School District No. 32 met in special session on February 22 and considered your recent unethical conduct in the lunch room. The matter was discussed at length and the board voted unanimously to dismiss you immediately as cook not only because of the scene which you created but because you refused to discuss the matter with me under proper conditions.

'Very cordially yours,

'A. S. Hansen, Superintendent'

From this letter we may assume the board felt, that notwithstanding the contract of employment, it was entitled to summarily discharge the cook for her alleged misconduct and insubordination. With this we cannot agree. Before the board was entitled to take that drastic action, it was necessary that the employee be apprised of charges preferred against her; that notice of hearing upon those charged be given her; and that at such hearing she be permitted full opportunity to offer such explanation, excuse, justification or refutation as might be available to her. While the board, at least in the first instance, was clothed with authority to decide whether its employee had been guilty of such misconduct or insubordination as warranted termination of her employment, it was not entitled to act arbitrarily in an ex parte proceeding, solely upon representations of the superintendent which, in the nature of things, were possible to be colored from his interested position.

Baird v. School Dist. No. 25, Fremont County, 41 Wyo. 451, 287 P. 308, cited by both parties, discusses the right of a teacher to have charges filed, to have notice of hearing, and a hearing when discharge is sought by the county superintendent of schools under authority of what is now our § 27-1108, W.C.S.1945. It also deals with the right of a jury to substitute its determination as to whether there is just cause for discharge for the decision reached by the school board after it had given notice and held a hearing for that purpose. The case also incidentally deals with the question presented here, which is whether the school district board may summarily and without hearing and notice discharge a term-contract employee and terminate the employment without compensation for the unexpired portion of the term in cases where cause for such discharge is the basis for such action. The conclusion reached in the Baird case, supra, makes it unmistakable that in order to justify the school board in discharging the plaintiff in this case, it was necessary that the plaintiff be given notice and hearing. The court said at page 460 in 41 Wyo. and at page 310 in 287 P.:

'* * * And we shall assume, for the purposes of this case, that, in order to make the decision of the school board of any effect, a hearing, upon notice, was necessary, * * *.'

Again at page 467 in 41 Wyo. and at page 313 in 287 P., it was said:

'* * * According to the Durst Case, removal of a teacher may be only for cause, and we may assume, as heretofore stated, that it should be only upon notice and a hearing. * * *'

See Durst v. School Dist. No. 2 of Niobrara County, 39 Wyo. 442, 273 P. 675.

While both the Durst case, supra, and the Baird case, supra, concerned the employment and discharge of teachers, we do not think the principle involved depends upon the character of the employment or the professional or non-professional status of the employee, but rather upon whether there is a contract of employment for a definite term and whether a proper proceeding was had to abrogate that contract for a just cause.

Section 67-103, W.C.S.1945, provides: 'Educational matters affecting the school district shall be under the care of the district board of school trustees', and § 67-625, W.C.S.1945, says: 'The district board shall employ all teachers necessary for the schools of the district, and pay them by draft on the treasurer'. These statutes obviously fall short of expressly saying that power...