.J o(~- Cl- ~ ()Obl'iC04 fl::[ TABLE OF CONTENTS

Transcription

1 .J o(~- Cl- ~ ()Obl'iC04 fl::[ TABLE OF CONTENTS TABLE OF CONTENTS... i TABLE OF AUTHORITIES... ii REPLY ARGUMENT... 1 THE SCHOOL DISTRICT'S BRIEF FAILS TO JUSTIFY THE DECISION TO TERMINATE STACY HESTER. CONCLUSION... 4 CERTIFICATE OF SERVICE... 5 CERTIFICATE OF FILING... 6

2 TABLE OF AUTHORITIES STATE CASES: Allen v. Texarkana Public Schools, 794 S.W.2d 138 (Ark. 1990)... 2 Babcock & Wilcox Co. v. McClain, 149 So.2d 523 (Miss.1963)... 1 Bairdv. School Dist. No. 25, Fremont County, 41 Wyo. 451 (Wyo. 1930)... 3 Board of Trustees ()(Weston County School Dist. No.1 v. Holso, 584 P.2d 1009 (Wyo. 1978).3 Delta CMIv. Speck, 586 So.2d 768 (Miss.1991)... 1 Johnson v. Ferguson, 435 So.2d 1191 (Miss.1983)... 1 Miller v. South Bend Special School Dist. No.1, McHenry County, 124 N.W.2d 475 (N.D. 1962)... 3 Mississippi Dept. of Human Services v. McNeel, 869 So.2d 1013 (Miss. 2004)... 1 Moulder v. Bartow County Bd. of Educ., 267 Ga.App. 339 (Ga. App. 2004)... 2 Powell v. Young, 148 Ohio St. 342 (Ohio 1947)... 2 Roberson v. Board of Ed. ofoty of Sante Fe, 80 N.M. 672 (N.M. 1969)... 2 Rosario v. Burke, 605 So.2d 523 (Fla. App. 1992) Spradlin v. Board of Trustees of Pascagoula Municipal Separate School District, 515 So.2d 893 (Miss. 1987)... 1 FEDERAL CASES: City of Chicago v. Morales, 527 U.S. 41 (1999)... 3 Grayned v. City of Rockford, 408 U.S. 104 (1972)... 3 Kinsey v. Salado Independent School Dist., 950 F.2d 998 (5th Cir. 1992)... 2 MISCELLANEOUS: John E. Rumel, A Question of Fairness: The Proper Standard of Review of School Board Just and Reasonable Cause Determinations in Teacher Termination Proceedings in Idaho, 41 Idaho L. Rev. 263, 279 (2005)

3 REPLY ARGUMENT THE SCHOOL DISTRICT'S BRIEF FAILS TO JUSTIFY THE DECISION TO TERMINATE STACY HESTER. Spradlin v. Board of Trustees of Pascagoula Municipal Separate School District, SIS So.2d 893,898 (Miss. 1987), recognized that this Court should review the entire record to "determine if the decision '" was unlawful because [it] was not supported by any substantial evidence and was not arbitrary and capricious." Substantial evidence, though not easily defined, means something more than a "mere scintilla" of evidence, Johnson v. Ferguson, 435 So.2d 1191 (Miss.1983) and that it does not rise to the level of "a preponderance of the evidence." Babcock & Wilcox Co. v. McClain, 149 So.2d 523 (Miss. 1963). It may be said that it "means such relevant evidence as reasonable minds might accept as adequate to support a conclusion. Substantial evidence means evidence which is substantial, that is, affording a substantial basis of fact from which the fact in issue can be reasonably inferred. " MiSSissippi Dept. of Human Services v. McNeel, 869 So.2d 1013, 1018 (Miss. 2004), quoting Delta CM/v. Speck, 586 So.2d 768, 773 (Miss.1991). It is important to emphasize that, in this case, the school board never heard the witnesses. Instead, it delegated that authority to a hearing officer, to whom it gave no authority to make any recommendation. That hearing officer made no determination that Hester had done anything wrong. In McNeel, this Court found it important that "[t]he hearing officer observed the testimony of witnesses and their demeanor." McNeel, 869 So.2d at In this case, there is no finding of wrongdoing by the hearing officer, who observed the testimony and their demeanor. What is before the COUli is a twenty-two (22) page finding of fact by that hearing officer, in which he fails to note any cause to fire Hester. What is before this COUli is a termination decision by a superintendent, who wanted to be rid of Hester because of disagreements with him arising years before over Hester's activity as baseball coach. What is before I

4 the Court is the school board, which simply went along with the decision of the superintendent. As noted in Kinsey v. Salado Independent School Dist., 950 F.2d 998, (5th Cir. 1992), a school board is composed of laymen who tend to rely upon and follow the judgment of the superintendent, a professional educator. Reliance upon the superintendent's recommendation is unjust in a case like this one, where the superintendence harbors personal animosity against a teacher, since the tendency of the school board is to "rubberstamp" the superintendent's recommendations, and the fact that a school board often does so is "more than theoretical musing." John E. Rumel, A Question of Fairness: The Proper Standard of Review of School Board Just and Reasonable Cause Determinations in Teacher Termination Proceedings in Idaho, 41 Idaho L. Rev. 263, 279 (2005). Superintendent Halford terminated Hester (and the school board and chancery court upheld that termination) despite the fact that there was no evidence that Hester committed any wrongdoing during the term of the teacher's contract at issue. The school district cites no case to counter Hester's argument in his principal brief that a teacher cannot lawfully be terminated because of some alleged misconduct (assisting the booster club in making the purchase of a lawnmower to mow the baseball field) under a previous contract. No jurisdiction would pelmit termination because of an incident occurring under a previous contract. In addition to the fact that the school district never cites a case to the contrary, it is notable that other jurisdictions also have this rule. See, example, Allen v. Texarkana Public Schools, 794 S.W.2d 138 (Ark. 1990); Roberson v. Board of Ed. of City of Sante Fe, 80 N.M. 672 (N.M. 1969); Powell v. Young, 148 Ohio St. 342 (Ohio 1947); Moulder v. Bartow County Bd. ofeduc., 267 Ga.App. 339 (Ga. App. 2004). Furthermore, this Court should apply that universal rule applicable in all jurisdictions, that to constitute "cause" to fire a teacher during the term of his contract, there must be a showing of 2

5 either a series of acts detrimental to schoolchildren or at least one extremely serious act. See Baird v. School Dist. No. 25, Fremont County, 41 Wyo. 451 (Wyo. 1930). According to Baird, it is not every wrongful act, but only those that impair the service of the teacher in properly instructing pupils that constitutes "cause" to terminate a teacher. A statute permitting a teacher to be discharged for cause during the contract is "penal in nature" and calls for strict construction. Rosario v. Burke, 605 So.2d 523, 524 (Fla. App. 1992). Isolated incidents of a failure to carry out some duty do not constitute "cause" for discharge of a teacher during the contract term. Board o/trustees of Weston County School Dist. No.1 v. Holso, 584 P.2d 1009,1016 (Wyo. 1978). Miller v. South Bend Special School Dist. No.1, McHenry County, 124 N.W.2d 475 (N.D. 1962), noted that a school district may not properly discharge a teacher for violating a school rule absent proof the teacher knew what specific rule was being violated. In this case, the superintendent claims a violation of school "policies," but no such "policies" were ever introduced into evidence at the hearing. Similar to Miller, there is no showing that Hester ever knew what "polices" he was violating when he assisted a booster club in purchasing a lawnmower for the benefit ofthe baseball team. It is a denial of due process to fire Hester on the grounds that he violated some "policy" without introducing evidence ofthat policy. Firing one because he violated "policies," without proof of what "policies" were violated, does not give a "person of ordinary intelligence a reasonable opportunity to lmow what is prohibited" so that he may act accordingly. Grayned v. City of Rockford, 408 U.S. 104,108 (1972). Just as a statute is "void for vagueness" when it does not "provide the kind of notice that will enable ordinary people to understand what conduct it prohibits," City of Chicago v. Morales, 527 U.S. 41,56 (1999), a decision to fire a teacher because he violated "policies," does not allow "ordinary people to understand what conduct" is prohibited. There being no proof of what "policies" were violated when Hester assisted the booster club in purchasing a 3

6 lawnmower for the use of the baseball team, this decision should be reversed as lacking substantial evidence. CONCLUSION This Court should hold this termination was not supported by substantial evidence and reverse. RESPECTFULLY SUBMITTED, this the 25thday of February, Respectfully submitted, WAIDE AND ASSOCIATES, P.A. BY: 7?fT ~~v =x IDE SIPPI BAR NUMBER

7 WAIDE AND ASSOCIATES, P.A. ATTORNEYS AT LAW POST OFFICE BOX 1357 TUPELO, MISSISSIPPI TELEPHONE: FACSIMILE: Attorneys for Appellant CERTIFICATE OF SERVICE I, Jim Waide, attorney for Appellant, do hereby certify that I have this day served via United States mail, postage prepaid, a true and correct copy of the above and foregoing to the following: Jeffrey C. Smith, Esq. Sims & Sims P.O. Box 648 Columbus, MS Honorable Dorothy W. Colom Lowndes County Chancery Court POBox 708 Columbus, MS THIS the 25th day of February, ~ fwatde 5

8 CERTIFICATE OF FILING This will certify that undersigned counsel for Appellant, pursuant to Miss. R. App. P. 2S(a) and 32(m), has this day filed the Reply Brief of Appellant by mailing the original and three (3) copies of said document, along with an electronically formatted copy thereof in Adobe Portable Document Format (PDF) on CD-ROM, via prepaid Federal Express next-day delivery, to the following: Kathy Gillis, Clerk Court of Appeals of the State of Mississippi 450 High Street Jackson,MS THIS, the 25th - day of February, I ~, VWV' J AIDE 6