Gerald L. HASTY
v.
Robert H. BELLAMY, Individually, Thomas H. Batchelor, Individually, and Fred A. Parker, Bobby H. Griffin, Sandy Deskins, Jane Thomas, Robert J. Smith, G. Dick Pierce, Franklin Elliott, as members of the Monroe City Board of Education and the Monroe City Board of Education, a Public Body.
No. 7920SC8.
Court of Appeals of North Carolina.
November 20, 1979.*137 Joe P. McCollum, J., Monroe, for plaintiff-appellant.
Robert L. Huffman, Monroe, for defendant-appellee Robert H. Bellamy.
Dawkins, Glass & Lee by Koy E. Dawkins, Monroe, for defendants-appellees Thomas H. Batchelor, Fred A. Parker, Bobby H. Griffin, Sandy Deskins, Jane Thomas, Robert J. Smith, G. Dick Pierce and Franklin Elliott as members of the Monroe City Board of Education, and the Monroe City Board of Education.
ARNOLD, Judge.
Plaintiff had taught in the Monroe schools for three years at the time the board of education voted not to renew his contract. Thus, he was a probationary teacher, see G.S. 115-142(a)(6) and (c)(2), and his rights are set out in G.S. 115-142(m). G.S. 115-142(m)(2) provides that "[t]he board, upon recommendation of the superintendent, may refuse to renew the contract of any probationary teacher . . for any cause it deems sufficient; provided, however, that the cause may not be arbitrary, capricious, discriminatory or for personal or political reasons." Plaintiff alleges that the defendants' action in terminating his employment was "arbitrary, capricious and for personal reasons."
Since the power to hire teachers rests in the school board, G.S. 115-21; Johnson v. Gray, 263 N.C. 507, 139 S.E.2d 551 (1965), and not in the principal or superintendent, plaintiff has failed to make out a cause of action against the individual defendants, and their motions to dismiss were properly granted. The sole remaining issue is whether the action of defendant board of education could have violated G.S. 115-142(m)(2).
From plaintiff's complaint, two possibilities appear: (1) the board failed to renew plaintiff's contract because he refused to sign the letter of condition, or (2) the board failed to renew plaintiff's contract because the principal and superintendent recommended that he not be rehired. If the latter were proved to be the case, no violation of G.S. 115-142(m)(2) would be established, since the superintendent is entitled to make such recommendations, see G.S. 115-21; G.S. 115-142(m)(2); Taylor v. Crisp, 286 N.C. 488, 212 S.E.2d 381 (1975), and we do not find that the failure to renew plaintiff's contract based on the principal's recommendation would make the board's action arbitrary, capricious, or for personal reasons, in violation of the statute. If the plaintiff were able to prove (1) above, however, we would reach a different result.
If plaintiff's contract had been renewed, he would have become a career teacher. G.S. 115-142(c)(2). Then, his employment could have been terminated only for certain specified reasons, see G.S. 115-142(e)(1), and such a dismissal could have taken place only upon the superintendent's recommendation, notice, and the opportunity for a hearing. G.S. 115-142(h). Although some language in the letter of condition indicated that by signing it plaintiff was waiving some of these rights, the letter also stated expressly that "nothing herein is deemed a waiver of any rights accruing to either the Monroe City Board of Education *138 or to myself." Any provisions of the letter which contravened G.S. 115-142 would have been void, and the remaining provisions, stating in essence that plaintiff was subject to dismissal for inadequate performance, added nothing to the ground for dismissal provided for by G.S. 115-142(e)(1)a. Plaintiff's agreeing to sign the letter, therefore would have had no practical effect.
The real question before us, then, is, "If plaintiff could prove at trial that the board failed to rehire him solely because he refused to sign a letter which would have had no effect had he signed it, could the trier of fact find that the board's action was arbitrary and capricious and therefore in violation of G.S. 115-142(m)(2)?" We believe that the answer is Yes. Although the first clause of G.S. 115-142(m)(2) indicates that the board may refuse to rehire a probationary teacher "for any cause it deems sufficient," the second clause makes clear that some causes are unacceptably arbitrary and capricious. We believe that a failure to rehire based solely on a teacher's refusal to sign a document which to a layman might easily appear damaging and which in fact has no practical effect may be such a cause. Plaintiff has stated a claim against the board sufficient to withstand a motion to dismiss, and he is entitled to pursue his claim.
Affirmed in part and reversed in part.
WEBB and WELLS, JJ., concur.