Wertz v. Southern Cloud Unified School Dist. No. 334, 47669

• Decision Date: 08 November 1975
• Docket Number: No. 47669,47669
• Citation: 542 P.2d 339,218 Kan. 25
• Parties: Charles WERTZ, Appellant, v. SOUTHERN CLOUD UNIFIED SCHOOL DISTRICT #334, Appellee.
• Court: Kansas Supreme Court

Page 339

542 P.2d 339

218 Kan. 25

Charles WERTZ, Appellant, v. SOUTHERN CLOUD UNIFIED SCHOOL DISTRICT #334, Appellee.

No. 47669.

Supreme Court of Kansas.

Nov. 8, 1975.

Syllabus by the Court

1. For due process under the 14th Amendment to the U. S. Constitution to apply, there must be state action and deprivation of an individual interest of sufficient substance to warrant constitutional protection.

2. The stigma which attaches to mid-year dismissal of a nontenured teacher for incompetence is sufficiently injurious to call for a hearing and, even though a hearing is not accorded such teacher by state statute, constitutional requirements of due process operate to overcome the lack of statutory rule.

3. A teacher who is dismissed without pay during the term of his contract has an interest in continued employment which is safeguarded by due process.

4. 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. (Following Rydd v. State Board of Health, 202 Kan. 721, 451 P.2d 239.)

5. The property interest in a teacher's contract obligates the government agency (school board) to grant the teacher notice of a proposed dismissal and a hearing at which he can be fully informed of the reasons for dismissal and challenge their sufficiency.

6. The constitutional right to due process may be waived by a person the same as other constitutional rights.

7. A determination that a party was entitled to due process in his dismissal is only preliminary to determining the extent of the protection to be accorded or in determining whether a waiver of due process has occurred.

8. Under extreme circumstances involving a serious disruption of the school educational processes it may be imperative that a teacher be relieved of teaching duties immediately but in fairness to a teacher a hearing should ordinarily be held before a decision to terminate without pay is made.

9. When principles of due process attach, there is a certain level of procedural fairness that must be afforded an affected party.

10. The actions of a teacher in refusing to participate in an 'after the fact' discharge hearing tendered by the board of education did not constitute a waiver of constitutional due process rights.

11. In the absence of extreme circumstances which might justify immediate termination a teacher is entitled to a hearing prior to his discharge, and the grant of a subsequent hearing under the facts of this case could not cure a failure to provide such a hearing.

12. A teacher whose employment is rightfully or wrongfully terminated in mid-year, but without a fair hearing, is entitled to back pay from the date of his discharge until a due process hearing is afforded or until the contract for that current year has expired.

Richard H. Seaton, of Everett & Seaton, Manhattan, argued the cause and was on the brief for appellant.

Don W. Noah, Beloit, argued the cause, and Jerry L. Harrison, Beloit, was with him on the brief for appellee.

Ward D. Martin, of Crane, Martin, Claussen, Hamilton & Barry, Topeka, was on the brief of amicus curiae for Kansas-Nat. Educ. Assn.

FROMME, Justice:

This is an action for damages by a nontenured public schoolteacher who was discharged during his contract term. The district court denied relief and the schoolteacher took this appeal.

The appellant, Charles Wertz, was a teacher of 14 years experience. He was employed by the defendant school district as a teacher of instrumental and vocal music for the 1972-73 school year. He began work August 1, 1972. His teaching assignment included beginning, intermediate and high school bands together with high school mixed chorus.

In September and October of 1972, the plaintiff's teaching performance was satisfactory to Principal Housh and to Superintendent Nichols in all respects except for his classroom control and his discipline of students. The principal and superintendent discussed this lack of discipline with Mr. Wertz. On November 6, 1972, the plaintiff received a written evaluation of his teaching performance from Principal Housh. It rated Mr. Wertz as progressive hardworking, well-groomed and versatile but advised that his rapport with students in class was questionable and that meassures should be taken to establish better rapport. The evaluation pointed out that Mr. Wertz' classroom control was an area needing improvement.

Mr. Wertz instituted a practice of student suspensions for disciplinary infractions which was not popular. Later in November the superintendent informed Wertz by letter that the administration officials believed there had been no improvement in his discipline and control of students. Wertz was requested to accomplish improvement in this area by December 11, 1972. Thereafter Wertz increased the number of expulsions from classes for disciplinary infractions but after a conference with the principal it was decided to return to the previous suspension practices.

On December 12, Principal Housh submitted an evaluation report to Mr. Wertz which indicated that discipline in his classes was getting worse and 'causing problems in the structure of the school.'

On December 13, Mr. Wertz was notified in a letter from Superintendent Nichols that he was suspended from further teaching duties without further pay. The four reasons given for such action were related to the discipline problems in Mr. Wertz' classrooms. Wertz was advised that Superintendent Nichols would recommend that Wertz be discharged at the next school board meeting. The letter further advised that Mr. Wertz was given 30 days in which to request a hearing before the board on his suspension.

The following day, December 14, 1972, the board met and presumably on the recommendations of Superintendent Nichols and Principal Housh Mr. Wertz was notified that the board had voted unanimously to discharge him without pay. The letter of discharge listed the same reasons and stated he had 30 days in which to request a hearing before the board. Mr. Wertz was given no prior notice of the time and place of the school board meeting which authorized the superintendent to issue the official letter of discharge. He was not present at the meeting and had no chance to counter the statements of Superintendent Nichols and Principal Housh upon which the board's decision rested.

After the termination letter was received plaintiff's legal counsel made formal demand on the board that Mr. Wertz be reinstated with back pay and current pay until a hearing could be held on his discharge before an impartial tribunal. Demand for an impartial tribunal was refused and this action was then filed in the district court requesting reinstatement with pay and damages for wrongful discharge in violation of his constitutional right to due process under the 14th Amendment to the Constitution of the United States.

The district court held a hearing on plaintiff's request for a temporary order to require the school board to reinstate him with pay until such time as he was afforded a fair hearing on the charges against him. The court refused to grant a temporary order. Ten months after the action was filed the court on motion dismissed plaintiff's claim for damage to his reputation. No appeal has been taken from those portions of the court's judgment. At the time of the trial on December 13, 1973, the term of plaintiff's contract had expired and plaintiff had secured another teaching position. The parties then stipulated that plaintiff's loss of salary for which damages were sought amounted to $4,400.00.

The case was tried to the court and the court found that the plaintiff was unable to maintain discipline in his classrooms and was discharged by the board on justifiable grounds. The court's findings of fact and conclusions of law do not speak to the question of the violation of due process rights under the 14th Amendment which was raised by the appellant in the trial court and is now presented on appeal.

At the time of appellant's discharge in 1972, Kansas had provided no statutory procedure for a hearing on discharge of a public schoolteacher, with one exception. The exception is set forth in a statute (K.S.A. 72-5407) relating to tenure of teachers employed by metropolitan districts located in cities having a population of over 120,000. Such statute does not apply to the defendant district or to appellant.

Our present act providing procedural guidelines for a due process hearing on termination of a teacher's contract was first passed in 1974. (See K.S.A.1974 Supp. 72-5436 et seq.) Appellant's discharge did not occur at a time so as to fall within the statutory procedure outlined by the 1974 act. So there will be no guidelines in this case which are taken from this recent statutory declaration on due process hearings.

It should be noted, however, that under K.S.A. 72-5411 (the continuing contract law) 'All contracts of employment of teachers in the public schools in the state, shall continue in full force and effect during good behavior and efficient and competent service rendered by the teacher, . . .' In the absence of written notice by the school board to terminate a teacher's contract on or before March 15, the contract continues for the next succeeding school year. This applied to Mr. Wertz' contract.

The due process clause of the 14th Amendment to the U. S. Constitution provides:

'. . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; . . .'

The U. S. Supreme Court has interpreted this provision of the constitution to protect citizens against the action of any state and its agencies, including school boards, as distinguished from actions of a private individual in terminating a contract.

In Board of Regents v. Roth, 408 U.S. 564, 92...