dissenting. I dissent from the majority’s opinion reversing and remanding this case because I believe that the Union County Circuit Court’s decision that the school-board action terminating appellant Victor Jackson, was not arbitrary, capricious, or discriminatory within the meaning of the Teacher Fair Dismissal Act, and I would affirm.
Arkansas Code Annotated section 6-17-1507 (Repl. 1993) requires that the notice of recommendation of a teacher’s termination include “a simple but complete statement of the grounds for the recommendation of termination....” I disagree with the majority’s conclusion that the notice given to Jackson did not meet that requirement. The notice, which was set forth in a letter from the superintendent to Jackson, stated, quite simply:
You are hereby notified that El Dorado School District has received a copy of the attached Incident Report from the El Dorado Police Department and also reviewed the front page of the February 3, 1999, edition of the News Times (copy attached) with reference to your arrest on various charges. If these charges are true, cause exists for your termination in the District. Notice is hereby given that for the reasons stated in the Incident Report and newspaper article, as Superintendent I will recommend termination of your contract to the Board.
Attached to the letter was a copy of the referenced newspaper article and police incident report, which stated, quite simply, that Jackson had been arrested and charged with two offenses: (1) theft by receiving; and (2) simultaneous possession of a controlled substance with intent to deliver and handguns. The newspaper article noted that Jackson had been arrested after the police executed a search warrant at his home, where police confiscated marijuana, ten handguns, four long rifles, television sets, videocasette recorders, lawnmowers, automotive goods, and other items. Following the search, Jackson was transported to the police station for booking.
The majority concludes that the notice was not sufficient because neither the newspaper article nor the police incident report contained reference to the fact that Jackson was also charged with operating an illegal pawn business, possessing a defaced firearm, and the illegal sale of beer, and because these additional charges were discussed and considered important by the school-board members during their deliberations over whether to accept the superintendent’s recommendation that Jackson be terminated.
I find nothing in the Teacher Fair Dismissal Act requiring that the school board, sitting in executive session, find that all of the reasons given by the superintendent in his notice to the teacher are true before it can vote to terminate a teacher’s contract. Rather, the Act only requires that, subsequent to the hearing, “the board, by majority vote, shall make specific written conclusions with regard to the truth of each reason given the teacher in support of the recommended termination....” I would agree with the majority that the notice was insufficient if Jackson had been terminated solely on the basis of reasons not contained in the superintendent’s notice. However, here, the majority of the school board found, specifically, that it was true that Jackson had in his possession a sufficient amount of marijuana to warrant charging him with possession of marijuana with intent to deliver. This is one of the reasons for recommending Jackson’s termination that was given by the superintendent in his notice. The Board need only have found one of the superintendent’s reasons for recommending Jackson’s discharge to be “true” in order to accept his recommendation.
I also disagree with the majority’s conclusion regarding the sufficiency of the notice because I believe that Jackson waived the requirement for strict compliance as to the notice. The supreme court has held that the requirement of strict compliance under the Teacher Fair Dismissal Act can be waived where there is proof that the party alleged to have waived the right has knowledge of the right. Lester v. Mt. Vernon-Enola School Dist., 323 Ark. 728, 917 S.W.2d 540 (1996). Jackson testified before the circuit court that he met with Superintendent Watson, as well as director of personnel, Shirley Billingsley, and the principal of Jackson’s school, Doyle Woodall, on February 4. Jackson said that they explained to him why he was being recommended for termination and that some of the reasons given to him at that meeting were in addition to the reasons set forth in the notice, including the fact that Jackson had been operating an illegal pawn business, that he had been selling beer out of his home and that Jackson was in possession of firearms, one of which had been defaced.
Jackson also testified at the circuit court hearing that he understood the charges that were being made against him that were not set out in the notice, stating, “There was no question in my mind about whether I understood it or didn’t understand it. It didn’t take a Philadelphia lawyer to understand it.” Jackson did not object when testimony concerning his possession of a defaced firearm and operating a pawn business without a license was introduced. Jackson made no objection at the school-board hearing to the sufficiency of the notice. Under these circumstances, I believe that Jackson has waived any objection to the sufficiency of the notice.
The majority opinion also relies upon Nettleton Sch. Dist. v. Owens, 329 Ark. 367, 948 S.W.2d 94 (1997), in reversing this case and in finding that the board failed to vote on the truth of each reason in support of the recommended termination. In Nettleton, the supreme court upheld the trial court’s reversal of the school board’s termination of a teacher’s contract because the district did not strictly comply with section 6-17-1510(c) when the board failed to obtain a majority vote with regard to each reason given the teacher in support of the recommended termination.
I find Nettleton to be distinguishable from the case at bar. In Nettleton, evidence was presented regarding Owen’s termination; the school board retired to executive session, then returned to open session to vote, taking one vote to accept the recommendation. Then the school-board president signed a letter outlining the reason’s for Owen’s termination. The president’s signature was the only one on the letter.
In the case at bar, testimony was introduced by two board members that, although there was a vote taken in open session in support of accepting the superintendent’s recommendation, the official vote was not recorded until the board members signed the letter stating their written findings as to why Jackson’s contract was being terminated. Bob Watson, president of the board, stated:
What my understanding is ... that what I was doing as a board member and each board member was doing was that we were voting on each individual charge or allegation that had been made against Mr. Jackson and that we were doing so by our signatures here on the last page.
Further Charles Cobb, one of the two board members who voted against terminating Jackson’s contract, testified in a deposition, “[A]s I understand it, we all had to cast our votes officially by writing and it was given to me probably the next day or so and I was asked to sign it as to agreeing or disagreeing with it and that’s why I put ‘no’ after my name.”
Thus, unlike in Nettleton where only one vote was taken, in the case at bar an initial vote was taken to accept the superintendent’s recommendation to terminate Jackson. That vote was then foEowed by a second vote of the board, in the form of a letter, by which each board member voted as to the truth of each of the reasons given in support of the superintendent’s recommendation. That letter reflects that six of the members of the board voted to find that the reasons for the recommendation were true, including the charge of possession of marijuana with intent to deliver. Two of the board members voted to find that the reasons given were not true. I believe that this procedure satisfies the requirements of the Act.
Because I believe that the circuit court was not clearly erroneous in finding that the school board provided a simple but complete notice and because a majority vote was taken with regard to each reason given Jackson in support of the recommended termination, I respectfully dissent from the majority’s opinion.
I am authorized to state that Judges HART, ROBBINS, and BAKER join in this opinion.