Simmons v. New Public School Dist. No. Eight, 970159

• Citation: 1998 ND 6,574 N.W.2d 561
• Decision Date: 20 January 1998
• Docket Number: No. 970159,970159
• Parties: 124 Ed. Law Rep. 389, 1998 ND 6 Marilyn SIMMONS, Petitioner and Appellant, v. NEW PUBLIC SCHOOL DISTRICT NO. EIGHT, Respondent and Appellee. Civil

Page 561

574 N.W.2d 561

124 Ed. Law Rep. 389, 1998 ND 6

Marilyn SIMMONS, Petitioner and Appellant, v. NEW PUBLIC SCHOOL DISTRICT NO. EIGHT, Respondent and Appellee.

Civil No. 970159.

Supreme Court of North Dakota.

Jan. 20, 1998.

Clark J. Bormann (argued), of Bair, Bormann, Bair & Garrity, PLLP, Mandan, for petitioner and appellant.

David E. Reich (argued), of Pearce & Durick, Bismarck, for respondent and appellee.

MESCHKE, Justice.

¶1 Marilyn Simmons appeals from a summary judgment dismissing her wrongful nonrenewal action against the New Public School District No. 8. We conclude the District failed to give Simmons proper notice of nonrenewal, and we therefore reverse the judgment and remand for further proceedings.

¶2 Marilyn Simmons was employed as the administrator of the District from 1991 to 1996. On April 13, 1996, Marilyn received notice that the District was contemplating nonrenewing her contract. The notice stated:

You are hereby advised that the school board of New Public School District No. 8 has voted to contemplate not renewing your contract for the coming school year for the following reasons:

1. Ability

2. Competence

A hearing on the contemplated nonrenewal was held on April 19-20, 1996. At the end of the hearing, the school board voted to nonrenew Simmons's contract, and on April 22, 1996, formally notified her by letter.

¶3 Simmons sued the District for damages for wrongful nonrenewal. On cross-motions for summary judgment, the court dismissed the action. Simmons appealed.

¶4 The dispositive issue on appeal is whether the written notice to Simmons of the contemplated nonrenewal complied with the statutory requirements. Teachers and administrators have a clear legal right to compliance with the statutory procedures for nonrenewal. Opdahl v. Zeeland Public School Dist. No. 4, 512 N.W.2d 444, 445 (N.D.1994). The pertinent part of the relevant statute directs:

The school board of a school district contemplating the contract nonrenewal of a superintendent who has been employed in the school district as a superintendent for at least two consecutive years, shall notify the superintendent in writing of the contemplated nonrenewal no later than April fifteenth.... The school board shall inform the superintendent in writing of the reasons for nonrenewal. The reasons may not be frivolous or arbitrary, must be related to the ability, competence, or qualifications of the superintendent, must be sufficient to justify the contemplated action of the board, and must be drawn from specific and documented findings arising from the formal and written evaluations of the superintendent's performance as required in subsection 2, except when the nonrenewal results from a necessary reduction in staff.

NDCC 15-47-38.2(13). This statute requires the District to notify the superintendent of the reasons for nonrenewal, the reasons must be related to ability, competence, or qualifications, and they must be drawn from specific and documented findings in prior written evaluations.

¶5 The purpose of notice is to apprise the affected person of the impending hearing and to permit that person to adequately prepare for the hearing. Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 14, 98 S.Ct. 1554, 1563, 56 L.Ed.2d 30 (1978); Municipal Services Corp. v. State, 483 N.W.2d 560, 564 (N.D.1992). A fundamental element of adequate notice is that allegations must be stated with particularity, giving notice of specific grounds and factual claims. In re Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 1446, 18 L.Ed.2d 527 (1967); Layon v. North Dakota State Bar Board, 458 N.W.2d 501, 507-508 (N.D.1990); In re Interest of P.W.N., 301 N.W.2d 636, 645-646 (N.D.1981). As Gault, 387 U.S. at 33-34, 87 S.Ct. at 1446-1447, explains, the person should be given advance notice of the specific issues she will be required to meet at the hearing.

¶6 The notice in this case gave no specific reasons or factual assertions for Simmons to meet. Rather, the notice merely parroted the language of the statute and, in the broadest general sense, asserted she was being nonrenewed for reasons of "ability" and "competence." From this cryptic notice, it was impossible for Simmons to know what specific reasons or factual incidents the District would be relying upon, and made it practically impossible for her to adequately prepare for the hearing.

¶7 The lack of notice was exacerbated in this case by the District's reliance at the hearing on evidence of factual allegations that had not been previously given to Simmons. At a twelve-hour hearing, from 7:00 P.M. on April 19 to 7:00 A.M. the next morning, the board heard complaints against Simmons from a series of parents, staff members, and others who admittedly had not made their complaints to the board or to Simmons before the contemplated nonrenewal. In construing nearly the same nonrenewal statute for teachers, we held the District is limited to the reasons listed in the notice and may not develop more reasons for nonrenewal at the hearing:

[W]e construe the statutory provision in Section 15-47-38(5) requiring the board to "give an explanation and ... discuss and confirm ... its reasons for the contemplated nonrenewal of the contract" to mean that the board, after having given the teacher written notice of its reasons for the contemplated nonrenewal, may not, at the hearing with the teacher, articulate new or additional reasons for its action nor may the board, in determining to not renew a teacher's...