Thompson v. Wake County Bd. of Ed.
| Decision Date | 17 November 1976 |
| Docket Number | No. 7610SC290,7610SC290 |
| Citation | 31 N.C.App. 401,230 S.E.2d 164 |
| Court | North Carolina Court of Appeals |
| Parties | Leonard K. THOMPSON v. WAKE COUNTY BOARD OF EDUCATION. |
Chambers, Stein, Ferguson & Becton by Charles L. Becton, Chapel Hill, for petitioner-appellee.
Boyce, Mitchell, Burns & Smith by G. Eugene Boyce, Raleigh, for respondent-appellant.
In the order of 8 December 1975, the Superior Court found as a 'factual conclusion of law' that 'the Wake County Board of Education, which was biased against Thompson, investigated, prosecuted and judged a cause against him, all in violation of due process as required by the current decisions interpreting constitutional guarantees.' Thus the court appears to impugn both the impartiality of the board's decision as well as the statutory procedures by which the decision was reached. We do not agree that petitioner's constitutional rights were violated and shall discuss separately each aspect of the finding and our grounds for disagreement.
The more fundamental aspect of the finding of unconstitutionality involves the procedures set forth in G.S. 115--142. G.S. 115--142 represents a legislative attempt to provide the public school teachers of this State a greater amount of job security than had previously existed. Taylor v. Crisp, 21 N.C.App. 359, 205 S.E.2d 102 (1974), Modified and aff'd, 286 N.C. 488, 212 S.E.2d 381 (1975). The statute creates the status of 'career teacher' to which various rights and privileges are attached. Perhaps the most important of these rights is that a career teacher may not be dismissed or demoted except upon specified grounds and in accordance with the statutory procedures provided.
The portions of G.S. 115--142 which are pertinent to this appeal are as follows:
'(e) Grounds for Dismissal or Demotion of a Career Teacher.--
(1) No career teacher shall be dismissed or demoted or employed on a part-time basis except for:
a. Inadequate performance;
b. Immorality;
c. Insubordination;
d. Neglect of duty;
e. Physical or mental incapacity;
f. Habitual or excessive use of alcohol or non-medical use of a controlled substance as defined in Article 5 of Chapter 90 of the General Statutes.
g. Conviction of a felony or a crime involving moral turpitude;
h. Advocating the overthrow of the government of the United States or of the State of North Carolina by force, violence, or other unlawful means;
i. Failure to fulfill the duties and responsibilities imposed upon teachers by the General Statutes of this State;
j. Failure to comply with such reasonable requirements as the board may prescribe;
k. Any cause which constitutes grounds for the revocation of such career teacher's teaching certificate; or
i. A justifiable decrease in the number of positions due to district reorganization or decreased enrollment, provided that subdivision (2) is complied with.
m. Failure to maintain one's certificate in a current status.
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(f) Suspension without Pay.--If a board believes that cause exists for dismissing a probationary or career teacher for any reason specified in G.S. 115--142(e)(1)b through 115--142(e)(1)h and that immediate suspension of the teacher is necessary, the board may by resolution suspend him without pay and without giving notice and a hearing.
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(h) Procedure for Dismissal or Demotion of Career Teacher.--
(2) Before recommending to a board the dismissal or demotion of the career teacher, the superintendent shall give written notice to the career teacher by certified mail of his intention to make such recommendation and shall set forth as part of his recommendation the grounds upon which he believes such dismissal is justified. The notice shall include a statement to the effect that if the teacher within 15 days after the date of receipt of the notice requests a review, he shall be entitled to have the proposed recommendations of the superintendent reviewed by a panel of the Committee. . . .
(3) Within the 15-day period after receipt of the notice, the career teacher may file with the superintendent a written request for either (i) a review of the superintendent's proposed recommendation by a panel of the Professionsal Review Committee or (ii) a hearing before the board within 10 days. . . .
(4) If a request for review is made, the superintendent, within five days of filing such request for review, shall notify the Superintendent of Public Instruction who, within seven days from the time of receipt of such notice, shall designate a panel of five members of the Committee (at least two of whom shall be lay persons) who shall not be employed in or be residents of the county in which the request for review is made, to review the proposed recommendations of the superintendent for the purpose of determining whether in its opinion the grounds for the recommendation are true and substantiated. . . .
(i) Investigation by Panel of Professional Review Committee; Report; Action of Superintendent; Review by Board.--
(1) The career teacher and superintendent will each have the right to designate not more than 30 of the 121 members of the Professional Review Committee as not acceptable to the teacher or superintendent respectively. No person so designated shall be appointed to the panel. . . .
(2) As soon as possible after the time of its designation, the panel shall elect a chairman and shall conduct such investigation as it may consider necessary for the purpose of determining whether the grounds for the recommendation are true and substantiated. . . .
(3) The career teacher and superintendent involved shall each have the right to meet with the panel accompanied by counsel or other person of his choice and to present any evidence and arguments which he considers pertinent to the considerations of the panel and to cross-examine witnesses.
(4) When the panel has completed its investigation, it shall prepare a written report and send it to the superintendent and teacher. The report shall contain an outline of the scope of its investigation and its finding as to whether or not the grounds for the recommendation of the superintendent are true and substantiated. . . .
(5) Within five days after the superintendent receives the report of the panel, he shall submit his written recommendation for dismissal to the board with a copy to the teacher, or shall drop the charges against the teacher. His recommendation shall state the grounds for the recommendation and shall be accompanied by a copy of the report of the panel of the Committee.
(6) Within seven days after receiving the superintendent's recommendation and before taking any formal action, the board shall notify the teacher by certified mail that it has received the superintendent's recommendation and the report of the panel. . . .
(j) Hearing Procedure.--The following provisions shall be applicable to any hearing conducted pursuant to G.S. 115--142(k) or (l).
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(3) At the hearing the teacher and superintendent shall have the right to be present and to be heard, to be represented by counsel and to present through witnesses any competent testimony relevant to the issue of whether grounds for dismissal or demotion exist or whether the procedures set forth in G.S. 115--142 have been followed.
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(l) Panel Does Not Find That the Grounds for Superintendent's Recommendation Are True and Substantiated.--
(1) If the panel does not find that the grounds for the recommendation of the superintendent are true and substantiated, at the hearing the board shall determine whether the grounds for the recommendation of the superintendent are true and substantiated upon the basis of competent evidence adduced at the hearing by witnesses who shall testify under oath or affirmation to be administered by any board member or the secretary of the board.
(2) The procedure at the hearing shall be such as to permit and secure a full, fair and orderly hearing and to permit all relevant competent evidence to be received therein. The report of the panel of the committee shall be deemed to be competent evidence. A full record shall be kept of all evidence taken or offered at such hearing. Both counsel for the system and the career teacher or his counsel shall have the right to cross-examine witnesses.
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(4) At the conclusion of the hearing provided in this section, the board shall render its decision on the evidence submitted at such hearing and not otherwise.'
Thus a career teacher may not be dismissed except for the grounds enumerated in subsection (e), and then only upon the recommendation of the superintendent to the board. The teacher must be notified of the superintendent's recommendation and given the opportunity to request a hearing before the board or a panel of the Professional Review Committee. If the Board believes that cause exists for dismissal under certain of the grounds listed in subsection (e)(1), the teacher may be suspended without pay and without notice and a hearing. The teacher's recourse is then by means of a hearing before the board or a panel of the Review Committee where the teacher may have counsel, present evidence and cross-examine witnesses. If the teacher requests a hearing before the panel and it finds that the superintendent's charges are not true and substantiated, the superintendent may either drop the charges or may again recommend suspension to the board. Only if the recommendation is renewed by the superintendent at this point does the matter come again before the board, which schedules a hearing. The teacher is notified and given an opportunity to be present, to be heard, to be represented by counsel and to present competent testimony. The final decision is then given by the board solely on the basis of the evidence presented.
Thus, when a teacher is suspended without pay and without notice...
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