dissenting. I disagree with the majority opinion which holds that the trial court determined correctly that the Board’s actions were not arbitrary or capricious.
The first reason given to support the Board’s action is that the appellant violated a board policy by failing to return his contract within the time limits established by the Board. The appellant’s renewal contract shows on its face that it was issued April 5,1982. The superintendent distributed the. contracts on May 18, and he requested that they be returned by June S, 1982. The written policy concerning return of renewal contracts states:
. . . All offers to renew annual contracts shall expire if not accepted in writing to the school administration office within ten (10) days of the date issued.
The Board and the superintendent did not distribute the contracts until six weeks after their issuance, and the superintendent did not abide by the written policy when he gave the teachers more than ten days to return the contracts. It appears that other teachers who complied with the superintendent’s directive also violated the Board policy, but apparently were not penalized. I believe that this lack of uniformity in applying the policy shows that the Board acted arbitrarily.
The appellant clearly intended to return to his position, but delayed in returning his contract because, as a twelvemonth teacher, he wished to exercise his right to negotiate over his salary. Under the conditions imposed by the superintendent, he had no real opportunity to negotiate. There was no Board meeting during the time the contracts were out, and, therefore, to comply with the superintendent’s directive he would have been required to sign a contract which was silent as to salary and then, after signing, attempt to negotiate with the Board. It is worth noting that, although the Board agreed to consider his request for a raise, no action was ever taken on his request, but he was non-renewed.
There was no real staffing uncertainty, because the appellant had assured both the superintendent and the Board that he intended to return regardless of the Board’s action on his request for a raise.
I think that the Board’s action was clearly arbitrary and capricious because the appellant was forced to either violate the superintendent’s directive or to effectively give up his right to any meaninfgul negotiation over salary.
I would reverse and remand with directions that the appellant be reinstated.
Cloninger, J., joins in this dissent.