IN THE CIRCUIT COURT OF WASHINGTON COUNTY TIM HOLLIS PLAINTIFF v. NO. CV FAYETTEVILLE SCHOOL DISTRICT NO. 1, OF WASHINGTON COUNTY, ARKANSAS and VICKI THOMAS DEFENDANTS COMPLAINT FOR BREACH OF CONTRACT, WRIT OF MANDAMUS, AND WRIT OF PROHIBITION Comes now the Plaintiff, and for his Complaint for Writ of Mandamus and Writ of Prohibition states: I. PARTIES AND JURISDICTION 1. Plaintiff is a resident of Benton County, Arkansas. 2. Defendant, The Fayetteville School District No. 1 of Washington County, is a legal entity that functions in Washington County, Arkansas. 3. Defendant, Vicki Thomas, is the superintendent of the Fayetteville School District No. 1 of Washington County, Arkansas. 4. All facts herein stated occurred in Washington County, Arkansas. 5. This Court is a court of proper jurisdiction. 6. This Court is a court of proper venue. II. FACTS 7. On May 24, 2012, the below-signed counsel faxed a letter of representation of his client, Tim Hollis, to Vicki Thomas, Superintendent of Fayetteville School District No. 1 of Washington Page 1 of 16
County, Arkansas. See, Plaintiff s Exhibit 1, May 24, 2012, Letter from Below-signed counsel to Vicki Thomas, attached. 8. In said letter, below-signed counsel referenced a meeting between Ms. Thomas and Mr. Hollis scheduled for 3:00 p.m. of the same day. 9. At approximately 1:30 p.m. of the same day, Plaintiff was treated for an emergent hip injury at Mercy Medical Center in Rogers, Arkansas, and was forced to cancel the appointment previously set for 3:00 p.m. 10. At said time, below-signed attorney spoke with Rudy Moore, attorney for the Fayetteville School District No. 1 of Washington County, Arkansas. 11. Mr. Moore acknowledged the medical condition of the Plaintiff and agreed to have the meeting rescheduled once the Plaintiff s medical condition permitted. 12. On Friday, May 25, 2012, and with no further communication from Vicki Thomas or Rudy Moore regarding the rescheduling of the meeting between Ms. Thomas and Mr. Hollis, Ms. Thomas faxed a letter to the office of below-signed counsel. See, Plaintiff s Exhibit 2, May 25, 2012, Letter from Vicki Thomas to below-signed attorney, attached. 13. Said letter to below-signed attorney contained a MEMORANDUM dated May 24, 2012, from Vicki Thomas to Tim Hollis. See, Plaintiff s Exhibit 3, May 24, 2012, MEMORANDUM from Vicki Thomas to Tim Hollis, attached. 14. Said MEMORANDUM states three requirements of Mr. Hollis. Specifically, the MEMORANDUM states: I am requiring that you attend anger management counseling sessions at Ozark Guidance as a condition of continued employment with Fayetteville Public Schools... You are Page 2 of 16
directed to call 750-2020 and make the initial appointment no later than Wednesday, May 30, 2012... You must secure the certificate of completion prior to returning to work. Id. Id. 15. Further, the MEMORANDUM states: In addition, you are prohibited from being on school grounds or attending schoolactivities until such time I deem it appropriate for you to return to work. If you have personal items that you need from your room, you may collect them on Saturday May 26th at 8:00am. A school resource officer will be at Fayetteville High School to let you into the building. You are directed to turn in your building keys and laptop to the receptionist at the administration building at 4:30pm today, May 24, 2012. 16. By the statement made by separate Defendant, Vicki Thomas, the MEMORANDUM was mailed to the Defendant on May 24, and faxed to below-signed counsel on May 25. See, Plaintiff s Exhibits 2-3, attached. 17. Therefore, by the Defendant, Vicki Thomas, own admissions, she issued an order that was impossible for the Plaintiff to comply with. 18. Moreover, the MEMORANDUM issued by separate Defendant, Vicki Thomas, was in breach of the Personnel Policy as required by statute and created by the Fayetteville School District No. 1 of Washington County, Arkansas Personnel Policy Committee. 19. Moreover, the MEMORANDUM issued by separate Defendant, Vicki Thomas, by breaching the Personnel Policy, also breached the contract between Tim Hollis and Separate Defendant, Fayetteville School District No. 1 of Washington County, Arkansas. 20. Moreover, as shown below, the MEMORANDUM issued by separate Defendant, Vicki Thomas, was in breach of the Teacher Fair Dismissal Act. Page 3 of 16
21. Moreover, as shown below, the MEMORANDUM issued by separate Defendant, Vicki Thomas, was in breach of the Public School Employee Fair Hearing Act. 22. Moreover, as shown below, the MEMORANDUM issued by separate Defendant, Vicki Thomas, was wholly unauthorized, ultra vires, and void ab initio. 23. Finally, as shown below, all actions herein of separate Defendant, Vicki Thomas, are attributable to Separate Defendant, Fayetteville School District No. 1 of Washington County, Arkansas. III. CLAIM I - BREACH OF PERSONNEL COMMITTEE POLICY 24. The Arkansas Legislature has provided that: (a) Each school district in the state shall have a set of written personnel policies, including the teacher salary schedule. (b) Personnel policies means all school district policies, guidelines, regulations, and procedures that pertain to the terms and conditions of a teacher s employment. (c) The personnel policies shall include, but are not limited to, the following terms and conditions of employment:... (6) Methods of evaluations;... (9) Grievances; (10) Dismissal or nonrenewal. Ark. Code Ann. 6-17-201. 25. Pursuant to said authorization, separate Defendant, Fayetteville School District No. 1 of Page 4 of 16
Washington County, Arkansas, has developed a process of evaluation of teachers. See, Plaintiff s Exhibit 4, Classified Employee Evaluation Procedure, Policy #4117, attached. See also, Plaintiff s Exhibit 5, Fayetteville School District Summative Report for Supervisory Evaluation Plan, Policy #4117.3, attached. 26. Here, there has been no negative evaluation of the Plaintiff by the Defendants. 27. Also pursuant to the authorization in Ark. Code Ann. 6-17-201, separate Defendant, Fayetteville School District No. 1 of Washington County, Arkansas, has developed a grievance process. See, Plaintiff s Exhibit 6, Fayetteville (AR) Public Schools Policy for Handling Personnel Problems, Policy #4102, attached. Said Procedure defines Grievance as a disagreement between two or more teachers concerning the interpretation of existing laws, contracts, policies of the Board of Education, or established rules. Id. 28. The actions of separate Defendant, Vicki Thomas, constitute a claim or concern related to the interpretation, application, or claimed violation of the personnel policies... or terms or conditions of employment, raised by an individual employee of this school district. 29. Therefore, the above-described Grievance Procedure should have been followed. 30. Although no grievance may be entertained against a supervisor for directing, instructing, reprimanding, or writing up an employee under his/her supervision, the Plaintiff is not bringing a Grievance Procedure, but instead bringing the current action in this Court for violation of said procedure by separate Defendant, Vicki Thomas. 31. Moreover, All school employees shall have the right to file grievances and have those grievances heard. Ark. Code Ann. 6-17-208(a)(1)(B)(i). Page 5 of 16
32. Here, by imposing a prohibition on Mr. Hollis effective immediately, separate Defendant, Vicki Thomas, has barred Mr. Hollis from having his grievance heard without irreparable harm being done. 33. Moreover, An employee shall be entitled to and shall be offered the opportunity to have a witness or representative of the employee s choice present during any disciplinary or grievance matter with any administrator. Ark. Code Ann. 6-17-210. 34. As noted above, the MEMORANDUM of May 24, 2012, from separate Defendant, Vicki Thomas to Tim Hollis was made without any notice to Mr. Hollis or opportunity to have a witness or a representative present. 35. For this reason alone the actions of separate Defendant, Vicki Thomas, were in violation of Arkansas Statutory Law. 36. Moreover, Separate Defendant, Fayetteville School District No. 1 of Washington County, Arkansas, has deferred to the statutory procedure for dismissal or nonrenewal of teachers contracts. See, Plaintiff s Exhibit 7, Fayetteville (AR) Public Schools, Policy on Dismissal and Nonrenewal of Contract, Policy #4119, ( Refer to the The Arkansas Teacher Fair Dismissal Act, codified as Arkansas Code Annotated 6-17-1501, et seq., and all amendments thereto. ), attached. IV. CLAIM II - BREACH OF CONTRACT 37. Moreover, Tim Hollis has a contract with the Fayetteville School District No. 1 of Washington County, Arkansas. See Plaintiff s Exhibit 8, Fayetteville School District No. 1, of Washington County, Arkansas, Employment Contract 2011-2012. 38. Said contract runs through June 30, 2012. Page 6 of 16
39. Moreover, District policies in effect July 1, 2011 and any policy put into effect by legal means during the term of this contract shall be incorporated into this contract. This contract may not be amended by oral agreement. Id. at Section VII. 40. Therefore, by violation of the policy of the District, the Defendants also violated their contract with Mr. Hollis. 41. As is shown herein, said Policy and Acts were violated by separate Defendant, Vicki Thomas in her MEMORANDUM of May 24, 2012, to Mr. Hollis. V. CLAIM III - BREACH OF TEACHER FAIR DISMISSAL ACT 42. The Arkansas Legislature has made clear that: That the current standard, which requires use that is not arbitrary, capricious, or discriminatory, for the nonrenewal, termination, or suspension of a teacher should be raised to a standard of just and reasonable cause. Ark. Code Ann. 6-17-1503(a)(1) (emphasis supplied). 43. The Arkansas Legislature has also declared that: That the current standard for compliance with this subchapter and a school district s personnel policies of strict compliance should be lowered to substantial compliance. Ark Code Ann. 6-17-1503(a)(2). However, substantial compliance does not mean no compliance, which is, as is shown herein, is what happened here. 44. Further, the Arkansas Legislature has made clear that A nonrenewal, termination, suspension, or other disciplinary action by a school district shall be void unless the school district substantially complies with all provisions of this subchapter and the school district s applicable personnel policies. Ark. Code Ann. 6-17-1503(c) (emphasis supplied). 45. As shown herein, there was no compliance, substantial, or otherwise, by separate Page 7 of 16
Defendant, Vicki Thomas, with the Act. 46. Specifically, by prohibiting Mr. Hollis to be on school grounds or school-related activities, separate Defendant, Vicki Thomas, has, in effect, terminated the contract of Mr. Hollis. 47. However, Ms. Thomas is a non-party to the contract and has no such authority. 48. The contract at issue is between Mr. Hollis and separate Defendant, Fayetteville School district No. 1 of Washington County, Arkansas. 49. Separate Defendant, Vicki Thomas, may certainly recommend termination of the contract with Mr. Hollis. Ark Code Ann. 6-17-1503(b)(1). 50. Separate Defendant, Vicki Thomas, may not terminate Mr. Hollis - or any other teacher for that matter. 51. Further, separate Defendant, Vicki Thomas, did not provide any notice of her recommendation for termination in separately numbered paragraphs for Mr. Hollis to prepare a defense. 52. Such failure, again, was in violation of the Teacher Fair Dismissal Act. Ark. Code Ann. 6-17-1507(b)-(c). 53. The actions of separate Defendant, Vicki Thomas, are so outside any authority provided to a superintendent, it is difficult to know whether she is attempting to terminate the contract with Mr. Hollis or to suspend Mr. Hollis. 54. Inasmuch as the MEMORANDUM from separate Defendant, Vicki Thomas to Tim Hollis can be read to suspend Mr. Hollis, such action would, again, be in violation of the Teacher Fair Dismissal Act. Page 8 of 16
55. A superintendent may suspend a teacher without notice or hearing. Ark Code Ann. 6-17-1508(a). 56. However, separate Defendant, Vicki Thomas, did not suspend or terminate Mr. Hollis, but instead gave Mr. Hollis conditions that he must meet to continue employment and prohibited Mr. Hollis from being on school grounds or attending school-related activities until such time I deem it appropriate for you to return to work. 57. This ambiguous directive that neither terminates nor suspends, but conditions and prohibits simply is not an authority provided to a superintendent. 58. To the extent that such is read to suspend Mr. Hollis, again, separate Defendant has violated the Teacher Fair Dismissal Act. 59. The Teacher Fair Dismissal Act requires written notice to include a statement of the grounds for suspension or recommended termination, setting forth the grounds in separately numbered paragraphs so that a reasonable teacher can prepare a defense. Ark. Code Ann. 6-17-1508(c). 60. Further, the written notice shall state that a hearing before the board of directors is available to the teacher upon request provided that the request is made in writing within the time provided in 6-17-1509. Ark. Code Ann. 6-17-1508(c)(2). 61. Again, this was not done. 62. Finally, if sufficient grounds for termination or suspension are found, the board of directors may terminate the teacher or continue the suspension for a definite period of time. Ark. Code Ann. 6-17-1508(c). 63. Again, it is the Board of Directors, not a superintendent, that ultimately suspends or Page 9 of 16
terminates a teacher. 64. Here, separate Defendant, Vicki Thomas, attempts to fashion a disciplinary authority (requiring anger management classes) that she simply does not have. 65. To the extent that the MEMORANDUM from separate Defendant, Vicki Thomas, can be read to be a suspension or termination of Mr. Hollis contract with separate Defendant, Fayetteville School District No. 1 of Washington County, Arkansas, such action, as shown above, is in violation of the Teacher Fair Dismissal Act. 66. Either way, this Court must enjoin such action. VI. CLAIM IV - VIOLATION OF THE PUBLIC SCHOOL EMPLOYEE FAIR HEARING ACT 67. As shown above, the MEMORANDUM from separate Defendant, Vicki Thomas, attempts to fashion an authority that separate Defendant, Vicki Thomas, simply does not have. 68. To the extent that such MEMORANDUM can be read to be a suspension or a termination, such action would violate the Public School Employee Fair Hearing Act, just as it would violate the Teacher Fair Dismissal Act. 69. Specifically, a superintendent may recommend termination to the board of directors with notice to the teacher. 70. The notice shall further state that an employee being recommended for termination... is entitled to a hearing before the school board of directors upon request provided that the request is made in writing to the superintendent within twenty-five (25) calendar days from receipt of the notice. Ark. Code Ann. 6-17-1703(d). Page 10 of 16
71. Here, separate Defendant, Vicki Thomas, conditioned further employment upon completion of an anger management program. 72. Such a power is simply not given to a superintendent. 73. Moreover, by prohibiting Mr. Hollis from being on school grounds or attending schoolrelated activities, separate Defendant, Vickie Thomas has, in effect, terminated, or, at the least suspended Mr. Hollis. 74. To the extent that the MEMORANDUM can be read to be a suspension, such MEMORANDUM gave no notice of Mr. Hollis right to appeal. 75. To the extent that the MEMORANDUM can be read to be a termination, this authority is simply not provided to a superintendent. 76. A superintendent may, in accordance with the Teacher Fair Dismissal Act, immediately suspend a teacher. Ark. Code Ann. 6-17-1704(a). Cf. Ark Code Ann. 6-17-1508(a). 77. However, as with the Teacher Fair Dismissal Act, such action must be accompanied by a notice of the right to appeal. Ark. Code Ann. 6-17-1704(b). Cf. Ark. Code Ann. 6-17- 1508(c)(2). 78. Again, such notice was not provided here. 79. Further, although a teacher normally has a right to an administrative hearing before the board of directors (See, e.g., Ark. Code Ann. 6-17-1705), it is unclear how a teacher can appeal to the board of directors from the attempted use of a power by a superintendent that is simply not provided for by law. That is, there would not seem to be an administrative appellate procedure for an action taken that is not provided for within administrative authority in the first place. Page 11 of 16
VII. CLAIM V - UNAUTHORIZED, ULTRA VIRES, AND VOID AB INITIO 80. As the Court is aware, actions of the state must be authorized. Unauthorized actions are ultra vires and void ab initio. 81. Specifically, the Arkansas Supreme Court has held: There is no doubt but that equity will exercise jurisdiction to restrain acts or threatened acts of public corporations or of public officers, boards, or commissions which are ultra vires and beyond the scope of their authority, or which constitute a violation of their official duty, whenever the execut[i]on of such acts would cause irreparable injury to, or destroy rights and privileges of, the complainant, which are cognizable in equity, and for the protection of which we would have no adequate remedy at law. Jensen v. Radio Broadcasting Co., Inc., 208 Ark. 517, 520, 186 S.W.2d 931, 932 (1945). 82. Further, in the case of Cammack v. Chalmers, 680 S.W.2d 689, 284 Ark. 161 (1984), the Arkansas Supreme court held: The appellees, University of Arkansas Trustees, request that we hold this suit cannot be maintained under Ark. Const. Art. 5, 20. It declares, The State... shall never be made defendant in any of her courts. We view our cases as allowing actions that are illegal, are unconstitutional or are ultra vires to be enjoined... We have recognized that officers of state agencies may be enjoined from acts which are ultra vires, in bad faith or arbitrary. (Emphasis supplied; citations omitted.) These include: 83. Here, separate Defendant, Vicki Thomas is requiring multiple things of Mr. Hollis. attending anger management counseling sessions at Ozark Guidance as a condition of continued employment with Fayetteville Public Schools; Making the initial appointment no later than Wednesday, May 30, 2012; and, Securing the certificate of completion prior to returning to work. Page 12 of 16
84. However, the Superintendent has no such authority. See Plaintiff s Exhibit 9, Fayetteville Public Schools, School Board Policy, Policy 2.1, Duties of the Superintendent, attached. 85. Nor is a superintendent given such authority by statute. 86. It is unclear what administrative relief that Mr. Hollis could seek with the Board of Directors of the Fayetteville School District No. 1 of Washington County, Arkansas, when the course of action initiated by separate Defendant, Vicki Thomas, itself is outside of any recognized authority and appellate procedure. 87. Even if there were such an avenue for appeal, which, again is unclear, separate Defendant, Vicki Thomas, has created an urgency unnecessarily by further stating that: In addition, you are prohibited from being on school grounds or attending schoolactivities until such time I deem it appropriate for you to return to work. If you have personal items that you need from your room, you may collect them on Saturday May 26th at 8:00am. A school resource officer will be at Fayetteville High School to let you into the building. You are directed to turn in your building keys and laptop to the receptionist at the administration building at 4:30pm today, May 24, 2012. Mr. Hollis is a the Debate/Forensics Coach and Arkansas NFL District Chair. 88. These positions held by Mr. Hollis require Mr. Hollis to be actively engaged in extracurricular activities, including during the summer months. 89. Therefore, by prohibiting Mr. Hollis to attend school-activities effective upon immediately, with no opportunity for even an administrative appeal (assuming that there even is such a remedy), separate Defendant, Vicki Thomas, has unnecessarily created an irreparable harm requiring remedy from this court. See, e.g., Wilson v. Pulaski Ass'n of Teachers, 330 Ark. 298, 954 S.W.2d 221 (1997). Page 13 of 16
VIII. CLAIM VI - RESPONDEAT SUPERIOR 90. Separate Defendant, Vicki Thomas, is, and was at all times stated herein, employed by separate Defendant, Fayetteville School District No. 1 of Washington County, Arkansas. 91. All of the actions contained herein of separate Defendant, Vicki Thomas, were conducted in her role as superintendent for separate Defendant, Fayetteville School District No. 1 of Washington County, Arkansas. 92. All actions contained herein of separate Defendant, Vicki Thomas, were in furtherance of the business of her employer, Fayetteville School District No. 1 of Washington County, Arkansas. 93. Therefore, pursuant to the doctrine of respondeat superior, separate Defendant, Fayetteville School District No. 1 of Washington County, Arkansas, shares all liability with separate Defendant, Vicki Thomas, resulting from any liability imposed upon Ms. Thomas stemming from the current action. WHEREFORE, by issuing the MEMORANDUM of May 24, 2012 to Tim Hollis, the Separate Defendant, Vicki Thomas, has: Violated Arkansas Code Annotated Section 6-17-201; Violated the Certified Employee Evaluation Procedure, Policy #4550, Violated the Certified Employee Performance Appraisal, Fayetteville Public School District; Violated the Certified Staff Grievances Procedure, Policy #4540; Violated Arkansas Code Annotated 6-17-208(a)(1)(B)(i); Violated Arkansas Code Annotated 6-17-210; Page 14 of 16
Violated Fayetteville Public School Policy on Dismissal and Non-renewal of Contract, Policy #4119; Violated Fayetteville Public School Policy on Dismissal and Non-renewal of a Certified Employment Contract, Policy #4520; Breached the contract between Tim Hollis and separate Defendant, Fayetteville School district No. 1 of Washington County, Arkansas; Violated Arkansas Code Annotated Section 6-17-1503(a)(1); Violated Arkansas Code Annotated Section 6-17-1503(a)(2); Violated Arkansas Code Annotated Section 6-17-1503(c); Violated Arkansas Code Annotated Section 6-17-1507(b)-(c); Violated Arkansas Code Annotated Section 6-17-1508(c); Violated Arkansas Code Annotated Section 6-17-1508(c)(2); Violated Arkansas Code Annotated Section 6-17-1508(c); Violated Arkansas Code Annotated Section 6-17-1703(d); Violated Arkansas Code Annotated Section 6-17-1704(b); and, Acted in a wholly unauthorized manner, by using non-existent powers and giving directives that are ultra vires and void ab initio. Moreover, all actions of separate Defendant, Vicki Thomas, are attributable to separate Defendant, Fayetteville School District No. 1 of Washington County, Arkansas. WHEREFORE, Tim Hollis requests that this Court issue an writ of mandamus requiring separate Defendant, Vicki Thomas, to withdraw her MEMORANDUM of May 24, 2012, and writ Page 15 of 16
of prohibition to both Defendants from taking any action to enforce said MEMORANDUM, for a jury trial to determine all issues of fact, for a post-judgment hearing to determine all legal and equitable relief available, and for all other proper relief. Respectfully Submitted, Ken Swindle Ark. Bar #97234 619 West Walnut Street Rogers AR 72756 Telephone (479) 621-0120 Fax (479) 621-0838 Page 16 of 16