Willis v. School Dist. of Kansas City, WD 30972.

• Decision Date: 01 October 1980
• Docket Number: No. WD 30972.,WD 30972.
• Citation: 606 S.W.2d 189
• Parties: Edward WILLIS, Respondent, v. The SCHOOL DISTRICT OF KANSAS CITY, Missouri, Appellant.
• Court: Missouri Court of Appeals

606 S.W.2d 189

Edward WILLIS, Respondent, v. The SCHOOL DISTRICT OF KANSAS CITY, Missouri, Appellant.

No. WD 30972.

Missouri Court of Appeals, Western District.

August 4, 1980.

Motion for Rehearing and/or Transfer Denied October 1, 1980.

Mildred L. Watson of North, Colbert & Fields, Kansas City, for appellant.

Jerome F. Waterman & Robert F. Wiegert of Houlehan & Waterman, Kansas City, for respondent.

Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.

Modified On Court's Own Motion.

Motion for Rehearing and/or Transfer to Supreme Court Denied October 1, 1980.

MANFORD, Judge.

This is an appeal from a circuit court judgment which reversed a school board order of termination of a tenured teacher. The judgment of the circuit court is reversed and remanded with directions.

Review of this matter is of the record, findings and order of the Board of Directors of the Kansas City School District and not of the circuit court, see Ingram v. Civil Service Commission, 584 S.W.2d 633 (Mo.App.1979). Neither the circuit court nor this court may substitute its judgment for that of the administrative agency and review is limited to the determination of whether or not the findings and order of the administrative agency were authorized by law and whether or not there was competent and substantial evidence to support such findings and order.

Although appellant (hereinafter referred to as the Board) presents several alleged errors, the disposition of this appeal turns upon the Board's challenge that the circuit court erred in ruling that the Board misapplied the law in concluding that respondent's absence for engaging in illegal acts violated Board policy on absence and thus constituted a statutory ground for termination for excessive and unreasonable absence. The remaining points raised by appellant are neither reached nor decided by this opinion.

Before addressing the evidence on record and the determination of the competency and substantiality of such evidence, determination of the lawfulness of the Board's action must be considered.

The appellant Board derives its existence and authority from the statutory laws of our state. The legislature, in Chapters 160 through 179, RSMo 1978, expressly provides for the public school system for our state and these statutory sections implement Articles IV and IX of our state constitution.

The pertinent statutory authority to the instant case is to be found within § 168.114, RSMo 1978.

The procedural aspects of termination are to be found within §§ 168.116 and 168.118, RSMo 1978. It should also be noted that appellate proceedings shall be in conformity with Chapter 536, RSMo 1978. Authority is granted school districts to promulgate rules and regulations which further implement the foregoing constitutional and statutory authorization, see §§ 171.011 and 162.621(1), RSMo 1978.

In this case, the Board was clearly authorized by statute to initiate the instant proceedings, and the matter actually becomes one of determining whether or not there was competent and substantial evidence to support the findings and order of the Board.

Recital of the pertinent facts now becomes necessary. Edward Willis, respondent and hereinafter referred to as teacher, acquired permanent teacher status under the Teacher Tenure Act at the beginning of the 1975-76 school year. The Teacher Tenure Act was effective July 1, 1970, see § 168.102.

Prior to March 20, 1977, a written contract existed between the board and teacher. This contract covered the period from August 30, 1976 through June 30, 1977, and under existing law, was continual in nature. On March 21, 1977, teacher and many of his fellow workers engaged in an illegal strike against the Kansas City School District. The strike and its illegality are not disputed on this record. That the strike action is prohibited and hence illegal under Missouri law, see § 105.530, RSMo 1978. That teachers are prohibited from forming and joining labor organizations, see § 105.510, RSMo 1978. That teacher voluntarily participated and engaged in the strike which commenced March 21, 1977 is also not in dispute in these proceedings. The evidence in this case also reveals that teacher engaged in similar illegal strike activities against the Kansas City School District in 1974.

The Kansas City School District, through the Board, notified teacher and his fellow employees to return to work. Teacher chose to ignore the return-to-work directive and joined the picket line in front of Central Junior High School. On March 21, 1977, teacher, in addition to being on the picket line, was observed by a Kansas City Missouri Police officer puncturing the tire of an automobile owned by a nonstriking teacher. Teacher was immediately arrested. When taken into custody, he was found to have in his possession, concealed on his person, two ice picks and a Phillips-type screwdriver. The charges lodged against him were that of carrying a concealed weapon and malicious destruction of property.

Teacher's arrest culminated in a conviction for carrying a concealed weapon in violation of Chapter 26 of the Revised Ordinances of Kansas City, Missouri. The charge of malicious destruction of property was dismissed upon restitution for damages to the tire, along with service charges paid by teacher.

Following his arrest, but prior to his conviction, teacher returned to the picket line. He was involved in verbal confrontation with nonstriking teachers, as they would cross the picket line and enter the school premises. One such incident resulted in a school official having to restrain a nonstriking teacher from attacking teacher, because teacher taunted this nonstriking teacher for not honoring the strike.

During the strike, the Board made a continued demand that all school personnel engaged in the strike return to work. This demand included teacher. His refusal to respond to the Board's demand resulted in his absence from his employment from March 21, 1977 to, but not including, April 12, 1977.

Teacher returned to work after he and others were found in contempt of court by the circuit court, 16th judicial circuit, fined $400 and ordered to either return to work or serve 30 days in jail. Teacher elected to return to work rather than serve a jail sentence following this order.

Teacher's conduct relative to the malicious destruction of property and the carrying of a concealed weapon received coverage in newspapers, on the radio and on television networks. His conduct was observed by district administrators, fellow teachers, students and the general public.

Teacher later admitted his acts were illegal and wrong. He acknowledged his contract with the Board was subject to state law and to Board policies. The Board notified teacher, by a certified letter dated May 3, 1977, of his termination, pursuant to § 168.116, RSMo 1978. One reason for termination as applicable to disposition of the matter on appeal was:

"3. Excessive and unreasonable absence from performance of duties: Your absence for the purpose of striking violated BP6452 to 6462 of the 1976-1977 Teacher Handbook, particularly BP6460 (2), as absence for an illegal act is prohibited by these policies." (Taken from letter of May 3, 1977 from Board to teacher, notifying him of his termination)

Teacher, as his right, then requested a hearing before the Board. The hearing was closed to the public at and upon the request of teacher. This hearing revealed no real dispute as to teacher's participation in the illegal strike activities, in carrying a concealed weapon and in the destruction of property. The Board offered evidence, both oral and documentary, alleging such acts of teacher not only violated state law and city ordinances, but school policies and regulations. The Board contended teacher's acts violated specific sections of such published regulations, which follow infra.

The Board's evidence included the testimony of the owner of the motor vehicle which was damaged, the arresting police officer, a keeper of personnel records to show teacher's absence, administrators who testified as to teacher's activities at the time of the strike and those persons who testified about teacher's job assignment, etc., subsequent to teacher's return to work.

Teacher countered with witness evidence regarding his proficiency as a mathematics teacher, his attitude as a strong class disciplinarian, his extra-curricular activities on behalf of the school, his working relationship with co-workers and his general character. Teacher admitted his actions and conduct were wrong, but described them as "mischief" and as a "stupid act". He stated he wished to apologize to his family, his principals, the superintendent, his students and the Board.

Teacher, by ignoring the demand by the Board to return to work, was absent twelve days. Evidence was submitted that during those twelve days, students were present only one day. This was because the strike was in progress.

The evidence closed and the Board, by vote, concluded the evidence supported the termination of teacher from his employment. Teacher filed a petition for review, upon which the circuit court reversed the findings and order of the Board, ordered that teacher be reinstated as a tenured teacher and upon remand, that the Board determine teacher's damages.

This appeal followed.

The circuit court, in overturning the Board's order, concluded that the incompetency and inefficiency of a teacher must be proven in addition to specific grounds for termination. The Board contends such finding to be erroneous and refers this court to § 168.114 1 (3), which alludes specifically to inefficiency, incompetency and insubordination. The particular part of this statute reads:

"1. An indefinite contract with a permanent teacher shall not be terminated by the board of education of a school district except for one or more of the following causes: * * *

(3) Incompetency, inefficiency or insubordination in line of duty; * * *"

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