Warren v. Buncombe County Bd. of Educ., 8528SC1086

• Decision Date: 20 May 1986
• Docket Number: No. 8528SC1086,8528SC1086
• Parties: , 32 Ed. Law Rep. 323 William P. WARREN v. BUNCOMBE COUNTY BOARD OF EDUCATION.
• Court: North Carolina Court of Appeals

Page 225

343 S.E.2d 225

80 N.C.App. 656, 32 Ed. Law Rep. 323

William P. WARREN v. BUNCOMBE COUNTY BOARD OF EDUCATION.

No. 8528SC1086.

Court of Appeals of North Carolina.

May 20, 1986.

Long, Howell, Parker & Payne by Robert B. Long, Jr., Asheville, for plaintiff-appellant.

Roberts, Cogburn, McClure & Williams by James W. Williams and Isaac N. Northup, Jr., Asheville, and Tharrington, Smith & Hargrove by Richard A. Schwartz, Raleigh, for defendant-appellee.

PHILLIPS, Judge.

Though not addressed in either party's brief the recorded facts raise a question as to the plaintiff's right to appeal from the decision of the Buncombe County Board of Education to the Superior Court and if the case was not properly in the Superior Court it is not properly here. In undertaking to appeal plaintiff stated that the Superior Court's review was sought pursuant to G.S. 115C-45 and G.S. 115C-325, both of which provisions were contained in Chapter 115 of the General Statutes before it was recodified with some deletions and additions as Chapter 115C. In substance, these sections provide for appeals to the Superior Court by public school teachers that have been dismissed, demoted, or suspended without pay by the local board of education, G.S. 115C-325(n), and where the board's decision affects a teacher's character or right to teach, G.S. 115C-45(c). The board decision challenged here did none of those things, at least directly, as its main thrust was simply to approve the action of its superintendent in accepting plaintiff's resignation the day it was tendered; and certainly, as Still v. Lance, 279 N.C. 254, 182 S.E.2d 403 (1971) makes plain, it did not affect plaintiff's character or right to teach as set forth in the predecessor to G.S. 115C-45(c). It can be argued, though, that the decision is reviewable under G.S. 115C-325(n), because if Superintendent Miller had no authority to accept plaintiff's resignation the termination of his employment was not a resignation, but a dismissal, and all dismissals are appealable under that statute. This nice question need not be addressed, however, because the appeal is clearly authorized by G.S. 115C-305, enacted in 1981, as follows:

Appeals to the local board of education or to the superior court shall lie from the decisions of all school personnel, including decisions affecting character or the right to teach, as provided in G.S. 115C-45(c). (Emphasis supplied).

The emphasized language indicates an intention to extend the right of appeal in public school personnel decisions far beyond the confines of the former law; and we hold that plaintiff's appeal was properly before the Superior Court and is properly before us, though G.S. 115C-305 was not cited as authority therefor when the appeal was taken. Nevertheless, plaintiff's appeal is unavailing; for our review of the "whole record" in accordance with the requirements set forth in Overton v. Goldsboro City Board of Education, 304 N.C. 312, 283 S.E.2d 495 (1981) discloses nothing that would require the board's decision to be reversed or modified.

The facts found by the board, including those above stated, are all supported by competent, credible evidence and raise but two questions, both questions of law: Can a tenured public school principal in this state resign his position whenever he sees fit? If so, can the resignation be accepted by the school superintendent and be effective before it is approved by the local school board? The same statutory provision supplies an affirmative answer to both questions. G.S. 115C-325 governs the hiring, firing, tenure and resignations of public school teachers; and its definition of "teacher" includes those who directly supervise teaching, as plaintiff did when he was principal of the Enka High School. Subsection (o ) of G.S. 115C-325 provides as follows:

A teacher, career or probationary, should not resign without the consent of the superintendent unless he has given at least 30 days' notice. If the teacher does resign without giving at least 30 days' notice, the board may request that the State Board of Education revoke the teacher's certificate for the remainder of that school year. A copy of the request shall be placed in the teacher's personnel file.

This provision, we think, expressly recognizes the fact that a public school teacher can resign whenever he sees fit, though not necessarily with impunity, and that his superintendent has the authority to accept the resignation. For if the superintendent has the power, as the statute provides, to waive the 30 days' notice that generally must be given by resigning teachers, it necessarily follows that he has the power simply to accept a resignation. Furthermore, the evidence shows that with the defendant Board's acquiescence Miller has routinely accepted all resignations tendered to him since he became superintendent; a practice that neither this statute nor any other forbids. Nor does this statute or any other require the local board of education to either act directly on a teacher's resignation or to approve the action taken on a resignation by the superintendent; whereas other sections of G.S. 115C-325 require the local board to act in certain specified ways in hiring, promoting, or disciplining career or probationary teachers. The reasons for the General Assembly specifying what local boards must do in the latter situation and saying nothing about its role in the former are obvious. Under the law public school teachers are hired, promoted, dismissed and disciplined by their employer,...