Unified School Dist. No. 461, Wilson County v. Dice

• Decision Date: 14 June 1980
• Docket Number: No. 51133,51133
• Citation: 228 Kan. 40,612 P.2d 1203
• Parties: UNIFIED SCHOOL DISTRICT NO. 461, WILSON COUNTY, Kansas, Appellee, v. Mark DICE, Appellant.
• Court: Kansas Supreme Court

Page 1203

612 P.2d 1203

228 Kan. 40

UNIFIED SCHOOL DISTRICT NO. 461, WILSON COUNTY, Kansas, Appellee, v. Mark DICE, Appellant.

No. 51133.

Supreme Court of Kansas.

June 14, 1980.

Syllabus by the Court

1. The essential elements of due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner.

2. The Kansas due process statutes governing termination of a teaching contract (K.S.A. 1979 Supp. 72-5436 et seq.) do not require a fact finding hearing prior to the Board's decision to deliver a written notice of its intention to nonrenew a teacher's contract, pursuant to K.S.A. 1979 Supp. 72-5437.

3. In reviewing a decision of an administrative agency or tribunal under authority of K.S.A. 1979 Supp. 60-2101(a) a district court may not substitute its judgment for that of the administrative agency or tribunal; it is limited to deciding whether: (1) The agency or tribunal acted fraudulently, arbitrarily or capriciously; (2) the administrative order is substantially supported by evidence; and (3) the tribunal's action was within the scope of its authority.

4. In reviewing a district court's judgment this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal's action as does the district court.

5. Arbitrary, oppressive or capricious conduct is shown where an order of an administrative tribunal is based upon findings which are not supported by evidence in the record. Following Neeley v. Board of Trustees, Policemen's & Firemen's Retirement System, 212 Kan. 137, Syl. P 3, 510 P.2d 160 (1973).

6. Substantial evidence is defined as that which possesses relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Following Brinson v. School District, 223 Kan. 465, 576 P.2d 602 (1977).

David E. Pierce, Neodesha, argued the cause and was on brief, for appellant.

Harry L. Depew, Neodesha, argued the cause and was on brief, for appellee.

HERD, Justice:

This is an appeal by Mark Dice, a teacher for U.S.D. No. 461, from a district court order affirming the Board of Education's decision to nonrenew his teaching contract for the 1978-1979 school year.

Mark Dice has been employed as an instrumental music instructor for Heller Elementary School, Northlawn Elementary School, and the Junior and Senior High Schools of Neodesha since 1974. His contract had been renewed each year until March 6, 1978, when the Board voted to not renew his teaching contract for the 1978-79 school year. Appellant was notified of the Board's decision and was requested to resign. On March 15, 1978, appellant submitted his resignation and requested a hearing. On March 24, 1978, Dice, by letter, requested that his resignation be revoked. The Board granted Dice's request. The time restrictions imposed by K.S.A.1977 Supp. 72-5437 had passed and the parties agreed to set their own time schedule. The Board was to furnish its notice and reasons for nonrenewal by April 20, 1978. Those reasons were submitted to Dice in a letter dated April 12, 1978, as follows:

"Mr. Mark Dice

Instrumental Music Director

Neodesha USD # 461

RFD # 2

Neodesha, Kansas 66757

"Dear Mr. Dice:

"The Neodesha USD # 461 Board of Education, meeting in a regularly scheduled session, on April 10, 1978, voted not to renew your contract for teaching for the 1978-79 school year. This notice is being given you as directed by the Board.

"Pursuant to the 'Agreement' of the parties (Board & Teacher) and as provided by KSA 72-5437 the reasons for the decision of non-renewal are given in writing as follows, to-wit:

Lack of interest in school matters other than your own school work and activities.

Lack of classroom supervision.

Failure to attend designated teachers meetings.

Insufficient attention to proper teacher attire at school functions.

Not always being on time or present at beginning of class and other activities.

Insufficient control of outside school activities.

Lack of public appearances of any solo or small ensembles.

More than normal number of parent complaints.

Unteacher-like conduct with and concerning students.

Insufficient preparation for 1977 band competition and with no competition in 1978.

Not following and failure to follow directions of school officials, in effect, disrespect or insubordination applicable to numerous items including those of not wearing a band uniform, failure to use buses for activities, not promptly securing your teacher certification, etc.

"Pursuant to KSA 72-5438 you may have this matter heard by a hearing committee upon written notice properly filed with the Board of Education within fifteen days from the date of this notice of non-renewal, and you should designate therein one hearing committee member.

"Yours very truly,

/s/ Edwin G. Lyon

"Edwin G. Lyon,

Superintendent of Schools"

Appellant requested a hearing on April 25, 1978, pursuant to K.S.A.1977 Supp. 72-5438. The hearing committee was formed pursuant to that statute and a hearing was held on June 26 and 27, 1978. The committee recommended appellant's "contract be renewed for one probationary year only (1978-1979) if Mr. Dice will agree to correct the deficiencies listed in Items 3, 4, 5, 6, 7 and 10."

The committee's recommendation was submitted to the members of the Board of Education who, nonetheless, notified Dice by letter of August 1, 1978, that they had decided not to renew his contract for the 1978-1979 school year. The Board's decision was appealed to the district court where it was affirmed. This appeal followed.

Appellant's first contention is that he was not given a hearing at a meaningful time and was thereby denied due process. He argues K.S.A.1977 Supp. 72-5437 contemplates that prior to any official action with regard to the termination of a teacher's contract, the Board must first give the teacher notice of its intent to nonrenew and afford the teacher a hearing to present opposition. Appellant claims that procedure was not followed in the case at bar because, he maintains, the Board's action on March 6, 1978, was a final decision to nonrenew and was not an "intention" to nonrenew.

The purpose of notice of nonrenewal is to advise the teacher of Board action early enough in the year to afford the teacher a reasonable opportunity to find other employment. The notice of intention to nonrenew is final action only if the teacher permits it to become so by failing to request a due process hearing. In Schulze v. Board of Education, 221 Kan. 351, 353-354, 559 P.2d 367, 370 (1977), this court stated:

"The right to hire, fire, and discipline employees is within the authority granted to a school board by statute. (K.S.A. 72-8205.) The board, however, must provide due proces. (Wertz v. Southern Cloud Unified School District, 218 Kan. 25, 542 P.2d 339, and cases cited therein.) The essential elements of due process of law are notice and an opportunity to be heard, and to defend in an orderly proceeding adapted to the nature of the case."

Appellant relies heavily on Wertz v. Southern Cloud Unified School District, 218 Kan. 25, 542 P.2d 339 (1975), in support of his argument that he was denied due process because he was denied a hearing before the Board voted its intention to nonrenew his contract. In that case, Charles Wertz was notified by the superintendent that he was suspended from further teaching, after having been previously requested to improve his class discipline problems. The notice of suspension gave Wertz 30 days to request a hearing. The following day, the Board met and voted to discharge Wertz. Wertz was informed of that decision and given 30 days to request a hearing. Wertz had not been present and had no notice of the meeting during which the Board voted to discharge him. Wertz brought suit for reinstatement and damages. We held Wertz was entitled to a hearing prior to discharge and under the facts of that case a subsequent hearing would not have cured the failure to provide such a hearing.

Wertz is not authority for appellant's position. The Board voted to discharge the teacher during the term of his contract without a hearing. Here, Dice is being nonrenewed at the end of his contract after having been given a proper hearing.

Appellant also relies on the cases of Bogart v. Unified Sch. Dist. No. 298 of Lincoln Cty., 432 F.Supp. 895 (D.Kan.1977) and Wagner v. Little Rock School District, 373 F.Supp. 876 (E.D.Ark.1973) in support of this issue.

In Bogart, the teacher was convicted of possession of marijuana in connection with his son's arrest for drug violations. The Board voted to dismiss him and sent a letter to the teacher stating his contract was terminated in mid-year "for conduct unbecoming an instructor, which conduct resulted in your conviction in the Lincoln County District Court of the offense of possession of marijuana." Bogart at 900. The teacher was later acquitted of the charges and he notified the Board of the court's action, demanding reinstatement. The Board did not reinstate the teacher. The teacher was given no opportunity to controvert the dismissal. He brought an action against the Board for reinstatement and damages alleging he was deprived of property and liberty interests arbitrarily, capriciously and without due process of law. The court held due process requires a hearing before an impartial tribunal. Procedural due process requires notice of hearing and "a method of decision which does not offend the concept of fundamental fairness." Bogart at 905. The court also stated at 906 "Substantive due process requires the decision-maker to be presented with and to consider a minimal amount of credible evidence sufficient to support a legal basis for its ultimate action. Again, what constitutes sufficient evidence may vary from situation to situation, although it need be only enough to prevent the...