Short v. School Administrative Unit No. 16, 88-226

Decision Date14 August 1992
Docket NumberNo. 88-226,88-226
Citation612 A.2d 364,136 N.H. 76
Parties, 77 Ed. Law Rep. 317 Richard S. SHORT v. SCHOOL ADMINISTRATIVE UNIT NO. 16 and another.
CourtNew Hampshire Supreme Court

Bernard J. Robertson, Exeter, by brief and orally, for plaintiff.

Soule, Leslie, Zelin, Sayward & Loughman, Salem (Barbara F. Loughman and Michael S. Elwell on the brief, and Barbara F. Loughman orally), and Wiggin & Nourie, Manchester (Richard B. McNamara on the brief), for the defendants, School Administrative Unit No. 16, Peter Vorkink, John Hodsdon, Renee Galli, and Judith W. Lamphere.

John P. Arnold, Atty. Gen. (David S. Peck, Asst. Atty. Gen., on the brief), by brief for the State, as amicus curiae.

Wadleigh, Starr, Peters, Dunn & Chiesa, Manchester (Robert E. Murphy, Jr., and Dean B. Eggert on the brief), by brief for New Hampshire School Boards Ass'n, as amicus curiae.

HORTON, Justice.

The defendants appeal the denial of their motion to set aside, or for judgment notwithstanding, a jury verdict entered in Superior Court (Temple, J.) awarding the plaintiff, Richard S. Short, damages for the defendants' wrongful termination of his employment in violation of State law, as well as of 42 U.S.C. § 1983. We reverse and dismiss the plaintiff's wrongful termination claim brought pursuant to State law because Short's allegation that School Administrative Unit No. 16 (the SAU) terminated his employment after he acted pursuant to a public policy failed, as a matter of law, to articulate a public policy. With regard to Short's § 1983 action, we hold as a matter of law that he did not possess a property interest in his employment contract's renewal and, accordingly, also dismiss his civil rights claim. In view of our holdings on these issues, we need not address the defendants' arguments that the evidence did not support the jury's verdict and that the trial court erred in allowing the jury to award damages for lost investments.

The pertinent facts are not disputed. The State Board of Education (state board) employed Short as a teacher consultant from 1974 until 1979 under a series of year-to-year contracts, and the school board of the SAU employed him as a teacher consultant from 1980 until 1983 under another series of contracts. See Laws 1965, 199:2; Laws 1979, 458:1. On May 19, 1982, the SAU joint board voted not to renew Short's employment contract for the 1983-84 school year. (The SAU is comprised of six school districts, five of which have three-member boards and one of which has a seven-member board. These twenty-two members make up the joint board.) The next day, the plaintiff requested a statement of reasons and a hearing to determine why he was not being renominated. By letter dated June 2, 1982, the plaintiff was notified that his contract would not be renewed, and that his employment would terminate on June 30, 1983. He was also informed that the SAU would not provide him with either a statement of reasons or a hearing with respect to his nonrenewal.

The plaintiff sought the commissioner of education's review, pursuant to the terms of his contract and to the statute that was in effect at that time. See Laws 1979, 458:1 (current version at RSA 189:43). A hearing was held on September 30, 1982, during which the parties presented exhibits and offers of proof supporting their respective positions. The commissioner approved the SAU's nonrenewal on November 18, 1982, finding that the employment contract "authorized 'termination' upon one year's prior notice, and did not require cause to exist, or be stated" (emphasis in original). The commissioner further found that there was no evidence that "the nonrenewal was given in bad faith or for any intentionally discriminatory or unlawful purpose," and that the SAU "acted in the proper procedural fashion to end Short's employment" on June 30, 1983. Following the hearing, but prior to the commissioner's report counsel for Short requested an evidentiary hearing to determine the reasons for the nonrenewal. The commissioner denied this request, noting that the employment contract and the statute required only that he review and determine whether to approve the nonrenewal. See Laws 1979, 458:1.

Subsequent to the commissioner's approval of the SAU joint board's decision not to renew Short's contract, the plaintiff filed suit in superior court, alleging that the defendants wrongfully terminated his employment under State law and under federal law, 42 U.S.C. § 1983. The defendants filed several motions for summary judgment, all of which were denied, and a two-week long trial ensued. At its conclusion, the jury returned a special verdict in which it found the defendants liable on both the State and the federal law claims, and found that the plaintiff was entitled to $500,000 in compensatory damages and $4,000 in punitive damages.

The contracts between the plaintiff and the SAU were entitled "Long Term" and provided for an "indefinite period" of employment; however, they also contained a provision concerning termination, which stated:

"F. The sole grounds for termination are:


2. By the Unit:

(a) On any anniversary date of the contract upon not less than one year's written notice of termination to the Professional Employee.


Provided, however, that termination by the Unit pursuant to this paragraph shall be subject to the review and approval of the Commissioner of Education upon request by the employee."

The statutes regarding termination that were in effect at the time of Short's nonrenewal provided that:

"The school administrative unit board shall have the authority to remove ... teacher consultants ... when the interests of the school administrative unit and the schools in the school administrative unit require their removal; provided, however, such removal shall be subject to the review and approval of the commissioner upon the request of the ... teacher consultant...."

Laws 1979, 458:1. They further stated that: "Any person aggrieved by an order or finding of the commissioner of education may appeal therefrom to the state board, which shall investigate the matter in any way it sees fit and its order shall be final." RSA 186:12 (1977).

Although the plaintiff had a statutory right to appeal the commissioner's decision to the state board, where he would have received a full evidentiary hearing, see N.H.Admin.Rules, Ed 204.02, he elected instead to commence this action for wrongful termination. When asked during trial why he did not exercise his right to appeal to the state board, Short responded, "I didn't because the Commissioner--they would have reaffirmed the Commissioner's decision. They are lay people appointed by the Governor, and I don't see that they would have any reason to change their opinion. He's given his."

We first address Short's claim under 42 U.S.C. § 1983, in which he asserts he had a due process right under the Federal Constitution to a statement of reasons and a hearing to determine the cause of his contract's nonrenewal, based on an implied contract for continued employment. The defendants argue that the plaintiff did not have a recognized property interest in continued employment, and that the superior court erred in failing to dismiss this claim.

To decide whether the plaintiff had a constitutional right to a statement of reasons for nonrenewal, and a hearing, we must first determine whether he had a constitutionally protected property right. Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). The United States Supreme Court has stated that "[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id at 577, 92 S.Ct. at 2709. According to the Supreme Court, a property interest in employment can arise from an implied contract,Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976), or from a mutually explicit understanding between the employer and employee, Perry v. Sindermann, 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570 (1972). State law determines whether or not Short had a legitimate claim of entitlement to the renewal of his contract. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709.

The language of Short's employment contract with the SAU, quoted above, entitles the plaintiff to only two things: (1) written notification at least one year in advance that his employment would end, and; (2) at his request, the commissioner's review and determination whether to approve the nonrenewal. Similarly, the applicable statute provided that the SAU could remove a teacher consultant whenever the interests of the SAU required his or her removal, as long as the commissioner, at the employee's request, reviewed and approved the employee's removal. Laws 1979, 458:1. Neither Short's contract nor the statute endowed him with any recognizable property interest in continued employment such that he was constitutionally entitled to a statement of reasons and a hearing.

While Short does not contend on appeal that he had an express contractual or statutory right to continued employment, he alleges, and the jury found, that he had an implied contract for continued employment. The plaintiff testified during trial that when he was initially hired in 1974, the superintendent and "a couple of" state board members told him that if he did a good job, his contract would be renewed. Short testified that he "assumed [he] had ... a long-term continuing contract, and ... that [he] should have cause." He asserted that his superior, Superintendent King, assured him that he could expect to have his contract renewed. The plaintiff felt very strongly that if he did his job, his contract would be renewed, and that if it was not renewed, he was entitled to a statement of the reasons why, and a hearing.

It is fundamental contract...

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