Pusd v. Hon. mcclennen/mckee

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

PEORIA UNIFIED SCHOOL DISTRICT, a political subdivision of the
state, Petitioner,

v.

THE HONORABLE CRANE MCCLENNEN, Judge of the SUPERIOR
COURT OF THE STATE OF ARIZONA, in and for the County of
MARICOPA, Respondent Judge,

TIMOTHY MCKEE, a single man, Real Party in Interest.

No. 1 CA-SA 13-0263
FILED 09-11-2014

Petition for Special Action from the Superior Court in Maricopa County
No. LC2011-000006
The Honorable Crane McClennen, Judge

JURISDICTION ACCEPTED; RELIEF GRANTED
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COUNSEL

Lewis Roca Rothgerber, LLP, Phoenix
By Mary Ellen Simonson, Kimberly A. Demarchi

DeConcini McDonald Yetwin & Lacy, PC, Tucson
By Denise M. Bainton
Co-Counsel for Petitioner

Law Offices of William R. Hobson, Chandler
By William R. Hobson

Law Offices of Kevin Koelbel, PC, Chandler
By Kevin Koelbel, Kyle J. Shelton
Co-Counsel for Real Party in Interest

By Christopher P. Thomas, Phoenix
Counsel for Arizona School Boards Association

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Judge John C. Gemmill joined.

C A T T A N I, Judge:

¶1 Peoria Unified School District seeks special action review of
the superior court’s decision that the District’s Governing Board
improperly terminated Timothy McKee’s employment after a student in
McKee’s physical education (“P.E.”) class drowned. The Board acted after
finding that McKee failed to exercise appropriate professional judgment
when he allowed a student with limited swimming skills to be in a crowded
pool during a free-swim period in which the student was not constantly
observed. The District argues that the superior court failed to give the
Board’s decision the deference owed under Arizona Revised Statutes
(“A.R.S.”) §§ 41-783(F) and 15-543(B). The District further argues that the
court erred by holding that the Board’s findings were not supported by
substantial evidence and that the Board incorrectly and arbitrarily applied
the law. For reasons that follow, we accept special action jurisdiction and
grant relief by reversing the superior court’s decision and remanding with

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instructions that the superior court enter judgment affirming McKee’s
dismissal.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 McKee taught an Advanced P.E. class at Ironwood High
School during the 2009–10 school year. The class included a swimming unit
at the high school pool, with formal instruction, along with “free swim”
time. Students who were not proficient swimmers or who preferred a
different activity were not required to participate in the swimming unit.

¶3 On May 12, 2010, a student with limited swimming skills told
McKee that he wanted to participate in the swimming class even though he
was not a good swimmer. After the structured instruction concluded,
McKee permitted the student to stay for the free swim portion of the class,
but directed him to remain in the shallow end of the pool. The student went
in the pool, and while standing in the shallow end, asked McKee for a
kickboard. McKee left the pool area to look for a kickboard in a nearby
storage room, briefly leaving the pool unsupervised.

¶4 While McKee was looking for a kickboard, a second teacher
arrived at the pool area with his P.E. class. McKee told the other teacher he
was looking for a kickboard, but he did not mention there was a student in
the pool with limited swimming skills.

¶5 After returning and telling the student he could not find a
kickboard, McKee walked to a ramada area 11 to 13 feet from the edge of
the pool and sat down in a chair next to the other teacher. They talked while
watching the pool area, but McKee did not tell the other teacher about the
student with limited swimming abilities. From his seated position, McKee
was not able to see the bottom of the deep end of the pool or the bottom of
the lane closest to him in the shallow end.

¶6 While McKee was seated, another student in the class noticed
the student with limited swimming skills at the bottom of the pool in the
deep end and called for help. McKee and the other teacher provided
medical attention, as did paramedics who were called to the scene. The
student was taken to the hospital, but died shortly thereafter.

¶7 The District’s human resources director conducted an
investigation of the drowning incident and determined that the District had
cause to terminate McKee’s employment, and District administrators
thereafter prepared a Statement of Charges to initiate the statutory
termination process under A.R.S. § 15-501 et seq. McKee requested a

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hearing, and a hearing officer appointed by the Board conducted a three-
day evidentiary hearing beginning on October 4, 2010.

¶8 After considering the evidence presented, the hearing officer
found that the student had drowned during a less-than two minute period
after McKee told him he could not find a kickboard, walked from the
shallow end and sat down next to the other teacher near the deep end of the
pool. The hearing officer recommended that the Board dismiss the
Statement of Charges, concluding that the District had not sustained its
burden of showing that McKee engaged in unprofessional conduct or that
there was cause to support his dismissal.

¶9 The Board reviewed the hearing officer’s recommendation
and held a lengthy public meeting at which it heard argument from both
the District Administration and McKee regarding whether to adopt, reject,
or modify the hearing officer’s recommendation. Following the hearing,
the Board concluded that McKee had failed to exercise appropriate
professional judgment by allowing a student with limited swimming skills
to be in a crowded pool outside McKee’s view. The Board thus rejected the
hearing officer’s recommendation and terminated McKee’s employment.

¶10 McKee appealed the Board’s ruling to the Maricopa County
Superior Court, which reversed, finding that “the Board’s actions were
contrary to law, arbitrary and capricious, and an abuse of discretion.” The
District seeks special action relief from that ruling.

JURISDICTION

¶11 Special action jurisdiction is discretionary and is generally
appropriate only when no equally plain, speedy and adequate remedy is
available by appeal. Ariz. R.P. Sec. Act. 1(a). In Anderson v. Valley Union
High School, 229 Ariz. 52, 59, ¶ 21, 270 P.3d 879, 886 (App. 2012), this Court
held that, under A.R.S. § 15-543, there is no right to appeal beyond the
superior court in a Teacher Tenure Act disciplinary action. The District thus
lacks any remedy by appeal, and in the exercise of our discretion, we accept
special action jurisdiction.

DISCUSSION

¶12 The District argues that (1) the superior court acted in excess
of its jurisdiction because McKee’s appeal from the Board’s decision was
filed after the 30-day jurisdictional deadline, (2) the superior court erred by
vacating a decision by the Board that was supported by substantial
evidence, and (3) the superior court erred by finding that the Board violated

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McKee’s right to due process and otherwise treated him unfairly. We
address each issue in turn.

I. McKee Timely Appealed the Board’s Ruling.

¶13 The District asserts that McKee’s appeal to the superior court
was untimely and thus jurisdictionally barred, because it was filed 31 days
after the Board’s decision, rather than within 30 days, as required by A.R.S.
§ 15-543. But McKee filed his appeal within 30 days, albeit with an incorrect
cover sheet. Although a court clerk rejected the filing, we conclude that the
wrong cover sheet was a technical defect at most, and that the otherwise
compliant complaint was thus constructively filed when initially delivered
to the Clerk. See Whittaker Corp. v. Estate of King, 25 Ariz. App. 356, 357, 543
P.2d 477, 478 (1975) (holding that the plaintiff had constructively filed its
complaint, even though a court clerk rejected it because of an incomplete
caption); Rowland v. Kellogg Brown & Root, Inc., 210 Ariz. 530, 532-34, ¶¶ 4,
10, 16, 115 P.3d 124, 126-28 (App. 2005) (finding that a technically deficient
complaint satisfied the notice pleading requirement and was constructively
filed, notwithstanding its rejection by the court clerk).1

II. The Board’s Ruling Was Supported by Substantial Evidence.

¶14 Pursuant to A.R.S. § 15-539(D), a governing board may
terminate a teacher’s employment based on unprofessional conduct.
Unprofessional conduct can include violations of statutes, rules, or
objectives of the governing board. Id. It can also include teacher conduct
that breaches the duties owed to students under the teacher’s care. See
Roberts v. Santa Cruz Valley Unified Sch. Dist. No. 35, 161 Ariz. 398, 778 P.2d
1294 (App. 1989); see generally Rouse v. Scottsdale Unified Sch. Dist. No. 48, 156
Ariz. 369, 752 P.2d 22 (App. 1987). Good cause for dismissal includes “a
cause which bears a reasonable relationship to a teacher’s unfitness to
discharge the duties assigned or is in a reasonable sense detrimental to the
students.” Bd. of Educ. of Tempe Union High Sch. Dist. v. Lammle, 122 Ariz.
522, 526, 596 P.2d 48, 52 (App. 1979).

¶15 A.R.S. § 15-541(A) provides that a governing board may
designate a hearing officer agreed to by the parties to conduct a hearing
regarding proposed actions to dismiss or suspend a teacher. After

1 In light of our ruling that the complaint was constructively filed
within the limitations period, we do not address McKee’s alternative
argument that the complaint was not due until 30 days from the date the
Board adopted the written decision on which it now relies.
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conducting a hearing, the hearing officer must make a written
recommendation to the governing board that includes findings of fact and
conclusions. Id. Parties to the hearing have the right to object to the
findings of the hearing officer and present oral and written arguments to
the governing board, which is ultimately responsible for accepting or
rejecting the hearing officer’s recommendation. Id.; A.R.S. § 15-541(B).

¶16 Under A.R.S. § 15-543(B) and A.R.S. § 41-783(F), the superior
court may review a governing board’s decision to determine whether the
decision was: (1) founded on or contained an error of law, including error
of construction or application of any pertinent rules, (2) unsupported by
any evidence as disclosed by the entire record, (3) materially affected by
unlawful procedure, (4) based on a violation of any constitutional
provision, or (5) arbitrary or capricious. This court reviews de novo a
superior court’s appellate decision. See Ariz. Comm. Diving Servs., Inc. v.
Applied Diving Servs., Inc., 212 Ariz. 208, 211, ¶ 7, 129 P.3d 497, 500 (App.
2006).

¶17 In reviewing the board’s decision regarding the basis for the
termination, “the superior court . . . has a limited appellate role; it does not
conduct a review ‘de novo’ as it once did in such matters.” Anderson, 229
Ariz. at 56, ¶ 10, 270 P.3d at 883. Instead, the reviewing court’s scope of
review is “very limited,” and the board’s decision must be upheld “unless
the decision sought to be reviewed lacks any reasonable evidence to
support it.” Johns v. Ariz. Dep’t of Econ. Sec., 169 Ariz. 75, 78, 817 P.2d 20, 23
(App. 1991). Thus, the superior court (and this Court on de novo review)
should not substitute its judgment for the board’s absent a clear abuse of
discretion. Id. at 81, 817 P.2d at 26.

¶18 Here, there was substantial evidence supporting the Board’s
findings. Several witnesses from the education field testified regarding the
common sense notion that having a student with limited swimming skills
in a P.E. class requires heightened vigilance, which supports the Board’s
conclusion that allowing the student to be in the pool without providing
constant supervision constituted unprofessional conduct. Although McKee
points to the hearing officer’s conclusion that the student’s drowning was
a tragic event that happened too quickly to prevent, that conclusion was
based on what could or could not have been done after the student was
allowed to go in the water. In contrast, the Board focused on McKee’s
conduct in failing to prevent the dangerous situation in the first place.
Although the hearing officer’s conclusion was reasonable, the contrary
position adopted by the Board was also reasonable. Accordingly, the
Board’s decision must be upheld. See Welch v. Bd. of Educ. of Chandler Unified

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Sch. Dist. No. 80, 136 Ariz. 552, 555, 667 P.2d 746, 749 (App. 1983) (“Were we
in the position of the school board, we might have decided to reinstate [the
plaintiff]. However, this is not our role.”).

III. McKee Did Not Establish that the Board Denied Him Due Process
or Otherwise Treated Him Unfairly.

¶19 McKee argues that (A) he was denied due process because (1)
the Board was not an impartial tribunal, (2) the Statement of Charges did
not provide adequate notice, and (3) the Board did not provide a written
statement identifying the evidence upon which it relied or the reasons for
its decisions. McKee also argues that (B) the dismissal process violated
A.R.S. §§ 15-539 and 15-541, and (C) he was held to a standard not
recognized in Arizona, and he was subjected to disparate treatment.

Due Process

¶20 The Teacher Tenure Act enumerates certain procedures to
ensure that a termination hearing comports with the notice and opportunity
to be heard required by principles of due process. See, e.g., A.R.S. § 15-539
(providing for notice to teacher, statement of charges specifying conduct
charged and rules violated, and the right to a hearing); A.R.S. § 15-541
(detailing hearing process, including the right to counsel, an official record,
and argument before the governing board). In applying these statutory
provisions, a governing board, acting as adjudicator in this context, is
presumed to be fair, and the party challenging the action bears the burden
to rebut this presumption. Pavlik v. Chinle Unified Sch. Dist. No. 24, 195 Ariz.
148, 152, ¶ 11, 985 P.2d 633, 637 (App. 1999).

¶21 Case law summarizes the statutory and due process
protections in teacher termination cases as requiring the following:

1. Adequate written notice of the specific grounds for
termination.

2. Disclosure of the evidence supporting termination,
including the names and nature of the testimony of adverse
witnesses.

3. The opportunity to confront and cross-examine available
adverse witnesses.

4. The opportunity to be heard in person and to present
evidence.

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5. The opportunity to be represented by counsel.

6. A fair-minded and impartial decision maker.

7. A written statement by the fact-finders as to the evidence
relied upon and the reasons for the determination made.

Deuel v. Ariz. State Sch. for the Deaf & Blind, 165 Ariz. 524, 527, 799 P.2d 865,
868 (App. 1990) (citations omitted).

1. Board Bias

¶22 McKee asserts that the Board was not impartial because the
District Administration’s “prosecuting” attorney was also the attorney for
the Board. But when McKee requested a hearing, separate counsel was
retained to advise the Board, and the attorney in question was representing
only the Administration during the disciplinary proceedings.

¶23 Although McKee notes that it would be improper for a
prosecutor to represent a judge in a criminal case, then represent the
prosecuting agency in the same case, the comparison is inapt. Teacher
disciplinary proceedings are the product of a statutory scheme, see A.R.S.
§§ 15-539 to -542, that specifically contemplates entrusting both the
investigative and adjudicative functions to a single entity—the school
district, and this Court has rejected due process challenges to such a
procedure notwithstanding the Board’s resulting “dual” role. See Rouse, 156
Ariz. at 374, 752 P.2d at 27 (finding that statutory scheme for teacher
discipline does not result in a due process violation absent a showing of
actual bias or partiality).

¶24 Based on Rouse, McKee’s argument regarding the attorney’s
role in representing the Administration fails. By retaining separate counsel
to represent it in its adjudicative capacity, the Board maintained the
appropriate separation from counsel representing the Administration, and
counsel’s continued representation of the Administration did not provide a
basis for setting aside McKee’s dismissal.

¶25 McKee also alleges that the attorney’s representation of the
Administration was improper and demonstrated Board bias because the
attorney was simultaneously representing the District (including the Board)

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in a whistleblower proceeding McKee initiated against the District.2
Although there may be reasons for the Board to retain different counsel in
these types of proceedings, such a procedure was not required here because
McKee’s whistleblower allegations were made against the District, which is
a different entity than the Board acting in its adjudicative capacity.

¶26 McKee also asserts that the Board predetermined the case. He
bases this assertion on the fact that during the District’s defense to McKee’s
whistleblower action, counsel for the District stated that McKee “was
already well aware that he was going to be terminated” at the time he filed
his notice of claim on August 17, 2010. McKee posits that this statement
showed that the decision to terminate his employment was made prior to
the Board’s meeting. But counsel’s statement addressed McKee’s
motivation for filing the whistleblower action and was simply referring to
the fact that McKee made his whistleblower allegations after district
administrators began preparing the Statement of Charges. The preparation
of a Statement of Charges is a necessary prerequisite to the process that
leads to a hearing and does not establish that the Board has already made a
decision.

¶27 McKee also argues bias based on the District’s position
against him in the whistleblower proceedings and on the District’s
pecuniary interest in the outcome of the termination case. But McKee
initiated the whistleblower case against the District, and his decision to
litigate against the District did not preclude the Board from acting on the
Statement of Charges in the termination case. See In re Ronwin, 139 Ariz.
576, 586, 680 P.2d 107, 117 (1983) (holding that the fact that all Arizona
Supreme Court judges had been sued by the petitioner in connection with
his prior denial of admission to practice law did not require recusal in
subsequent litigation seeking admission to the Arizona Bar). And McKee’s
assertion that the District would potentially be liable for his salary and
attorneys’ fees if the Board decided not to dismiss him does not overcome
the presumption of impartiality because McKee’s assertion is too
speculative absent evidence as to the significance of the fees “in light of the
entity’s entire budget.” See Pavlik, 195 Ariz. at 154, ¶¶ 22–24, 985 P.2d at
639; see also id. at 154–55, ¶¶ 25–26, 985 P.2d at 154–55 (recounting statutory
safeguards to ensure a fair decision by the governing board).

2 McKee alleged that the District was not in compliance with an inter-
governmental agreement and County Regulations requiring the District to
provide lifeguards at its pool.
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¶28 McKee alleges that the Board did not adopt relevant policies
until after the hearing, and never identified a policy, statute or regulation
he violated. But even absent a specific policy, testimony at the hearing
supported the Board’s conclusion that a student with limited swimming
skills requires heightened supervision, and that a teacher violates his duties
as a professional by not adequately protecting the students in his class.

¶29 McKee also alleges that the Board did not review the entire
record and relied on extra-record evidence. Although McKee asserts that
the Board was only given binders that contained documents “cherry-
picked” by the Administration, there is no evidence that the entire record
was not available to the Board. Nor is there evidence that McKee was
prevented from presenting information to the Board or from explaining the
significance of information that may or may not have been in the binders.
In any event, due process in this context requires a fair hearing, but does
not necessarily require that each Board member personally review every
item in the record. See Fulton v. Dysart Unified Sch. Dist. No. 89, 133 Ariz.
314, 320–21, 651 P.2d 369, 375–76 (App. 1982) (rejecting assertion that “the
Board’s decision without personally reviewing the testimony heard by the
commission violated [the plaintiff’s] due process rights,” and citing to
Morgan v. U.S., 298 U.S. 468, 481 (1936) (observing that although due
process requires “a hearing in a substantial sense,” “[e]vidence may be
taken by an examiner” and “[e]vidence thus taken may be sifted and
analyzed by competent subordinates.”)).

¶30 McKee’s extra-record allegation is based on the fact that one
Board member independently visited the pool prior to the hearing. While
such extra-record investigation is generally improper, here there was no
dispute regarding the physical characteristics of the pool and the
surrounding area. McKee did not dispute that he and the other teacher
watching the pool could not see the bottom of the pool from where they
were sitting, and thus, the Board member’s observation of the pool and the
pool area did not materially affect the Board’s decision and does not
provide a basis for relief. See A.R.S. § 41-783(F) (specifying grounds for
overturning an agency decision, including a showing that the decision was
“[m]aterially affected by unlawful procedure”).

¶31 Finally, McKee alleges that another Board member based her
decision on matters outside the scope of the Statement of Charges because
the Board member stated that she considered whether she would entrust
McKee with the supervision of her own child. The Board member’s
statement was not, however, improper or based on extra-record
information; instead the statement simply applied one of the standards

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considered by the Board—whether McKee’s professional judgment
regarding student safety was deficient.

2. Adequacy of Statement of Charges

¶32 McKee argues that the Statement of Charges did not provide
sufficient notice of the charges against him because the District relied on
evidence beyond that included in or attached to the Statement of Charges.
McKee further argues that the District failed to timely disclose witnesses
and evidence by “dribbling out” its evidence until the day before the
hearing.

¶33 Under A.R.S. § 15-539(D), a statement of charges must
“specify instances of behavior and the acts or omissions constituting the
charge so that the certificated teacher will be able to prepare a defense,” and
must detail “the facts relevant to each occasion of alleged unprofessional
conduct.” Here, the Statement of Charges set forth the circumstances
underlying the student’s drowning and stated facts that, if true, supported
McKee’s dismissal as a teacher. The Statement of Charges adequately
advised McKee of the charges against him and led to a hearing at which the
Administration was required to prove up the asserted facts with evidence.

¶34 McKee’s complaints regarding disclosure of witnesses and
evidence is similarly unavailing. His argument focuses primarily on his
assertion that, in complying with a request for information, District
administrators withheld portions of the human resources investigator’s
interview notes. McKee sought the District’s investigative file through a
public records request filed August 24, 2010 (four days after the Board
adopted the Statement of Charges). On September 16, 2010 (after McKee
had filed a public records lawsuit), the Administration produced notes for
9 of the 14 interviews. On October 1 and 2, the Administration provided
notes from two other interviews, and on October 3, provided notes from the
final three interviews. McKee’s hearing began on Monday, October 4.

¶35 The Administration’s disclosure satisfied the District’s due
process obligation to disclose the “names and nature of the testimony of
adverse witnesses.” See Deuel, 165 Ariz. at 527, 799 P.2d at 868. The
Administration’s witness and exhibit list, filed October 1, included three
witnesses to the drowning (McKee, the other teacher at the pool on the day
of the drowning, and a student who was also present) whose fairly
substantial interviews in the police investigation were included as
attachments to the Statement of Charges. Additionally, the

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Administration’s exhibit list, disclosed on October 2, included a portion of
the human resources investigator’s notes.

¶36 Even assuming McKee did not obtain documents from the
District when he wanted them or within deadlines required for disclosure
under a public records request, he has not established a due process
violation warranting setting aside the Board’s ruling. McKee had notice of
the charges and the evidence against him, and he was able to successfully
present his case to the hearing officer—who recommended against
terminating McKee’s employment. Although the Board rejected the
hearing officer’s recommendation, it did not do so based on facts of which
McKee was unaware. Instead the Board’s decision was based on its view
that the assessment of McKee’s professionalism turned not on what
happened after the student started to drown, but rather on McKee’s
decision to allow the student to be in the pool without heightened
supervision. Thus, McKee has not established that the alleged due process
violations affected the Board’s decision. See A.R.S. § 41-783(F).

3. Adequacy of Board’s Findings

¶37 McKee asserts that the Board failed to provide or serve “a
written statement by the fact-finders as to the evidence relied upon and the
reasons for the determination made.” See Deuel, 165 Ariz. at 527, 799 P.2d
at 868. But the Board provided a detailed chart articulating its findings of
fact and conclusions of law, with citations to the record for each finding of
fact and conclusion of law.

¶38 The Board was not required to provide a written, signed
judgment. A.R.S. § 15-543(B) does not require any particular type of ruling,
and instead provides only that “[t]he decision of the governing board may
be reviewed by the court in the same manner as the decision made in
accordance with § 41-785.” Here, the Board’s decision, which was
announced in a public meeting and subsequently confirmed in writing, was
adequate to provide a basis for judicial review under § 41-785.

McKee’s Dismissal Did Not Violate A.R.S. § 15-539 or § 15-
541

¶39 McKee argues that under A.R.S. § 15-539(C), he was entitled
to preliminary notice of “inadequate classroom performance” and an
opportunity to correct the performance. But the Teacher Tenure Act
acknowledges that not all teacher conduct, even inside a classroom,
constitutes inadequate classroom performance, since the statute
“specifically designates ‘unprofessional conduct’ as an alternative to
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‘incompetency’ as a basis for dismissal.” DeFries v. Sch. Dist. No. 13 of
Cochise Cnty., 116 Ariz. 83, 86–87, 567 P.2d 1212, 1215–16 (App. 1977); see
also A.R.S. § 15-539(D). Here, the Board’s decision was based on McKee’s
failure to conform to standards of professional conduct, rather than on
inadequate classroom performance of the type a teacher should be given an
opportunity to cure. See Wheeler v. Yuma Sch. Dist. No. 1, 156 Ariz. 102, 107,
750 P.2d 860, 867 (1988).

¶40 McKee also argues that the District failed to attach copies of
relevant statutes to the Statement of Charges, as required by A.R.S. § 15-
539(F). But McKee does not suggest that he and his counsel were unaware
of the relevant statutes, and his counsel in fact cited the substance of the
relevant statutes throughout the proceedings. Thus, the failure to attach
copies of relevant statutes to the Statement of Charges had no bearing on
the Board’s ruling.

¶41 McKee further argues that he was not properly “served” with
the Statement of Charges because it was not served by a process server or
by registered or certified mail. But McKee does not dispute that a District
administrator personally gave him and his attorney copies of the Statement
of Charges. And he does not assert any prejudice resulting from the method
of service or from his related claim regarding the timing of the hearing.
Thus, he is not entitled to relief. See A.R.S. § 41-783(F).

McKee Was Not Held To a Standard Unrecognized in
Arizona and He Was Not Subjected to Disparate Treatment

¶42 McKee argues that he supervised the pool in the same manner
as every other P.E. teacher in the district, including the teacher who was
with him at the pool and who was responsible for watching the deep end
at the time the student drowned. The Board’s decision was based, however,
on McKee’s decision to allow a student with limited swimming skills to go
in the water without heightened supervision. No other teacher was
demonstrated to have knowingly allowed a limited-skills swimmer in the
pool without providing a heightened level of supervision. Thus, McKee
did not establish that he was subjected to disparate treatment.

CONCLUSION

¶43 Although there are facts in the record that support the hearing
officer’s recommendation not to terminate McKee’s employment, there are
also facts supporting the Board’s decision to reject that recommendation.
In light of the Board’s statutory responsibility to make these types of
determinations, the superior court should have deferred to the Board’s
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decision. Accordingly, we accept special action jurisdiction and grant relief
by reversing the superior court’s decision and remanding with instructions
that the superior court enter judgment affirming McKee’s dismissal.

:gsh

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