Williams v. Board of Ed., Cass R-VIII School Dist., R-VIII

• Decision Date: 30 October 1978
• Docket Number: No. KCD,R-VIII,KCD
• Parties: Walter R. WILLIAMS, Appellant, v. BOARD OF EDUCATION, CASSSCHOOL DISTRICT, Respondent. 29389.
• Court: Missouri Court of Appeals

Page 81

573 S.W.2d 81

Walter R. WILLIAMS, Appellant, v. BOARD OF EDUCATION, CASS R-VIII SCHOOL DISTRICT, Respondent.

No. KCD 29389.

Missouri Court of Appeals, Kansas City District.

Oct. 30, 1978.

George E. Kapke, Piedimonte & Cochran, Independence, for appellant.

Elvin S. Douglas, Jr., Crouch, Crouch, Spangler & Douglas, Harrisonville, for respondent.

Before SWOFFORD, C. J., and SHANGLER, DIXON, PRITCHARD, WASSERSTROM, SOMERVILLE and TURNAGE, JJ.

SHANGLER, Judge.

This appeal comes from the judgment of the Circuit Court which affirmed the decision of Board of Education of the Cass R-VIII School District to terminate Walter R. Williams as principal of the high school and to demote him to the status of classroom teacher.

The appellant Williams was principal of the high school of the School District since the 1972 academic year. In March of 1976, he was informed by letter from the superintendent of schools that the Board of Education had voted that his contract as principal would not be renewed for the coming school year, and offered instead the position of tenured teacher. The appellant requested a written statement of reasons as allowed a certain status of employment by § 168.101.6, RSMo 1975 Supp. The reason the Board issued for failure to reemploy was: "We strongly feel that you are allegedly incompetent and inefficient in your line of duty as a principal." The appellant Williams thereupon requested, and was granted, a public hearing before the Board. Williams was there represented by counsel, presented evidence, and cross-examined the witnesses against him. At the conclusion, the Board terminated his employment as principal and demoted him to the status of tenured teacher. This decision was accompanied by a statement of findings of fact and conclusions of law.

The appellant makes two essential contentions on this appeal: First, that he was denied due process of law in particular and, second, that the action of the Board was unsupported by substantial and competent evidence.

The first contention of error subsumes three elements, all couched in the due process terms of the Fifth and Fourteenth Amendments and of Article I, § 10 of the Missouri Constitution: 1. that the Board did not give Williams Specific written reasons for nonreemployment as principal and demotion to teacher; 2. that the Board was not a fair and impartial tribunal; and 3. that the evidence against him was by witnesses who merely narrated accounts received from other persons whose identities were refused him, thus he was effectively denied cross-examination.

The procedural safeguards of the Fourteenth Amendment follow to protect a substantive right within constitutional terms to property or liberty. The claim of a public school teacher or administrator to the protection of due process in continued employment, therefore, depends upon whether that interest amounts to a right of liberty or property within the compass of the Fourteenth Amendment. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 569(1), 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

Roth and Sindermann, argued and decided concurrently, were suits by teachers at public universities whose expired contracts were not renewed. The cases both raised the question: whether the claim of each to reemployment was an interest protected by Fourteenth Amendment procedural due process and so entitled them to a statement of the reasons for nonrenewal and opportunity to be heard.

Roth was a teacher without tenure who was hired by a Wisconsin university for one academic year. That state provided procedural protection against nonrenewal for cause only for those under tenure. Roth was notified, without explanation or opportunity to be heard, that he would not be rehired for the following year. Roth contended that he was thereby denied right to procedural due process.

Sindermann was a member of a Texas college faculty. He also was notified, without explanation or prior hearing, that his one-year contract would not be renewed. He also contended he was denied thereby procedural due process.

The United States Supreme Court held that the protections of procedural due process apply "only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property (then) the right to some kind of prior hearing is paramount." Roth, supra, 408 U.S. l. c. 569, 92 S.Ct. 2705, Sindermann, supra, l. c. 597, 92 S.Ct. 2694 et seq. As applied to property interests

(t)he Fourteenth Amendment's procedural protection . . . is a safeguard of the security of interests that a person has already acquired in specific benefits. (Roth, supra, 408 U.S., l. c. 576, 92 S.Ct. 2708)

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. (Roth, supra, l. c. 577, 92 S.Ct. 2709)

A contract for employment as a public teacher without provision for tenure creates no property interest in reemployment protected by procedural due process. Roth, supra, 408 U.S., l. c. 578, 92 S.Ct. 2701. Nor is a teacher who is not rehired but remains free to seek other employment without more deprived of his liberty either within the meaning of the Fourteenth Amendment. Sindermann, supra, 408 U.S., l. c. 599, 92 S.Ct. 2694. It is clear, however, that even absent a legitimate claim of property right as in the case of a nontenured teacher or principal where the nonrenewal of employment, whether tenured or nontenured, involves an interest in liberty due process requires opportunity to refute the charges. Roth, supra, 408 U.S., l. c. 572, 92 S.Ct. 2701.

The property interest in reemployment which due process will protect takes many forms: dismissal from an office held under tenure; a dismissal during the contract term; dismissal where continued employment is clearly implied even without formal contract or tenure (Roth, supra, l. c. 573, 576, 92 S.Ct. 2701) and dismissal from a position of De facto tenure (Sindermann, supra, 408 U.S., l. c. 602, 92 S.Ct. 2694). Any such legitimate expectation to renewal of employment establishes a property right which cannot be dismissed without a statement of reasons and opportunity to be heard. See also: Recent Cases, 38 Mo.L.Rev. 279 (1973); Comment: 61 Ky.L.J. 830 (1973); Case Comment: 25 U. of Fla.L.Rev. 624 (1973).

The appellant Williams can make no claim of De jure tenure because his employment is denied "permanent status" by express provision of statute. Section 168.104.4. He does not claim De facto tenure nor an implied promise of continued employment. Nor does the nonrenewal by the Board rest on a stigma of reputation or other obloquy such as to foreclose other employment opportunities. Roth, supra, 408 U.S., l. c. 572, 92 S.Ct. 2701. In other words, Williams has no claim to constitutional procedural due process, and the only process he can claim is whatever may be due under the statute.

The Missouri Teacher Tenure Act, §§ 168.102 to 168.130, added by the Laws of 1969, defines permanent status and the procedure for termination of a teacher with such tenure. In these express terms it denies tenure to a principal (§ 168.104.4):

Any permanent teacher who is promoted with his consent to a position of principal or assistant principal, or is first employed by a district as a Principal or assistant principal, Shall not have permanent status in such position but shall retain tenure in the position previously held within the district, or, after serving two years as principal or assistant principal, shall have tenure as a permanent teacher of that system. (Emphasis supplied.)

The provision which excludes a principal from tenurial employment in that position but allows him status as a teacher, shows a legislative intention for flexibility and change in key administrative positions while at the same time affords a principal a certain degree of employment security as a tenured teacher.

If, however, appellant Williams means to claim a De facto property right to employment (under Sindermann ) on the Year-to-year language of § 168.101.2, that contention is immediately dispelled by § 168.101.6 which provides that personnel with an even greater interest than he can show (those who have been reemployed five times or more) ¹ may be terminated by simple notice. The provisions of § 168.101.2 are by express terms made "subject to the regulations hereinafter set forth" including the notice method of § 168.101.6 that the school authority shall merely inform the employee "of demotion or lack of reemployment on the same terms and in the same position" in order to effectuate nonrenewal of employment. These statutes are to be read together to find the legislative intent for nonrenewal of nontenured employment. A public employee may not formulate a De facto expectancy of property right in the face of a contrary positive enactment.

The employment and reemployment of a principal, therefore, are governed not by The Teacher Tenure Act which specifically excludes that position from its terms, but necessarily by § 168.101 which concerns all certificated employees ineligible for permanent status under The Teacher Tenure Act. That statute (§ 168.101.2) specifies that "after the original employment of a certificated employee . . . under this section, his employment shall continue in the same staff position From year to year (emphasis added) subject to certain other regulations." The recourse for a nontenured employee who faces demotion or nonrenewal of employment is by § 168.101.6 which requires the Board to give, upon request, a statement of reasons and hearing with access to counsel to present evidence and cross-examine adverse witnesses. The appellant, however, has no status for the procedure of § 168.101.6 which is accorded by its terms only to...