No. 88-352
IN T H E SUPREME COURT O F THE S T A T E O F MONTANA
1989
J . DARRELL J O H N S O N ,
P e t i t i o n e r and A p p e l l a n t ,
-vs-
BOARD O F T R U S T E E S , BEAVERHEAD COUNTY H I G H
SCHOOL D I S T R I C T ,
R e s p o n d e n t and R e s p o n d e n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of L e w i s & C l a r k ,
T h e H o n o r a b l e H e n r y L o h l e , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
C h a r l e s A. Graveley, Helena, Montana
For R e s p o n d e n t :
W.G. 'Duke' G i l b e r t , 111, D i l l o n , M o n t a n a
Poore, R o t h & Robinson; Donald Robinson, Butte,
S u b m i t t e d on B r i e f s : Feb. 3, 1989
Decided: A p r i l 6, 1989
II
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
J. Darrell Johnson (Johnson) appeals the decision of
the First Judicial District Court, Lewis and Clark County,
affirming the County Superintendent's decision to dismiss him
from his employment as a teacher with the Beaverhead County
High School in Dillon, Montana. We affirm.
Appellant presents the following issues upon appeal:
1. Was the dismissal of appellant without good cause
and therefore a wrongful violation of his rights as a tenured
teacher?
2. Was appellant wrongfully deprived of his right to a
de novo trial before the County Superintendent?
Appellant Johnson worked as an arts teacher with the
Beaverhead County High School in Dillon from 1970 until
August of 1984. In August of 1984, he was suspended pending
a hearing before the Beaverhead County School Board (Board)
regarding charges of sexual contact with two female students
during the 1983-84 school year. The Board subsequently
dismissed Johnson on March 21, 1985 for immorality and
unfitness after a full hearing on the charges. Johnson
appealed this dismissal to the County Superintendent,
pursuant to 8s 20-4-207 (5) and 20-4-205 (2), MCA.
A full evidentiary hearing on the charges was conducted
before the Acting County Superintendent, Wallace Vinnedge, on
April 11 and 12 of 1985. Both parties agreed that the sole
issue on appeal was whether the Board dismissed Johnson
without good cause. Before rendering a decision, the County
Superintendent considered all the evidence introduced at this
hearing, the transcripts from the school board hearing, and
the earlier videotaped testimony given by the two girls with
whom Johnson allegedly engaged in sexual acts. The County
Superintendent then concluded the Board had good cause to
dismiss Johnson and affirmed the Board's dismissal.
Johnson appealed this decision first to the State
Superintendent of Public Instruction and then to the District
Court. The County Superintendent's decision was affirmed in
both of these reviewing forums. Johnson then filed this
appeal.
A teacher in Montana who holds a valid employment
contract may be dismissed prior to the expiration of the
contract for "immorality, unfitness, incompetence, or
violation of the adopted policies of such trustees." Section
20-4-207, MCA. In the present case, Johnson was dismissed
for that immorality and unfitness apparent from his alleged
sexual activity with two minor female students during the
1983-84 school year. If these factual findings of sexual
activities are supported by the evidence, then the dismissal
was indeed for good cause and not a violation of Johnson's
rights as a tenured teacher under contract. F e therefore
l
turn to an examination of the facts upon which the County
Superintendent based his conclusions of immorality and
unfitness.
We note at the outset that the County Superintendent is
the trier of fact in an appeal from a trustee decision
dismissing a teacher under contract. Section 20-3-210(2),
MCA; Yanzick v. School Dist. No. 23 (1982), 196 Mont. 375,
641 P.2d 431. The County Superintendent, as the trier of
fact, had the ability to judge the credibility of each
witness. Consequently, this Court has recently held that
"neither the State Superintendent of Public Instruction nor
the District Court may substitute its judgment for that of
the County Superintendent on issues of fact." Trustees of
Lincoln County School Dist. No. 13 v. Holden (Mont. 1988),
754 P.2d 506, 509, 45 St.Rep. 786, 789. A court upon review
of a dismissal action will reverse the factual findings of
the County Superintendent only if they are clearly erroneous.
Carruthers v. Board of Horse Racing (1985), 216 Mont. 184,
188, 700 P.2d 179, 181. As stated in 5 2-4-704(2), MCA:
(2) The court may not substitute its
judgment for that of the agency as to the
weight of the evidence on questions of
fact. The court may affirm the decision
of the agency or remand the case for
further proceedings. The court may
reverse or modify the decision if
substantial rights of the appellant have
been prejudiced because the
administrative findings . .
. are:
(e) clearly erroneous in view of
the reliable, probative, and
substantial evidence on the whole
record . . .
Having reviewed the entire record in the present case,
we hold that the findings of fact issued by the County
Superintendent are not clearly erroneous. Specifically, we
hold that the following findings, which support a charge of
immorality and unfitness sufficient to warrant a dismissal,
are supported by reliable, probative and substantial
evidence :
FINDINGS OF FACT
3. That the Petitioner had admitted that
he gave back rubs and placed his hands
upon female students in a locked storage
room during the 1983-84 school year.
That such conduct is inappropriate and
improper for a teacher.
4. That the Petitioner had, during the
1983-84 school year, engaged in acts of
sexual contact with a Student under the
age of sixteen years at various places
within Beaverhead County High School,
during class periods, and at other times,
which sexual contact amounted to sexual
intercourse or attempted sexual
intercourse.
5. That the teacher engaged in acts of
sexual contact with an additional student
.. . during school hours and on school
premises during the 1983-84 school year,
which contact consisted of fondling and
kissing the students' breasts. That such
conduct is improper for a teacher.
In regards to Finding No. 3, Johnson testified before
the County Superintendent that he had rubbed the neck and
shoulders of several female students who came to his art
storage room to discuss personal problems. Moreover, Johnson
plead guilty in May of 1985 to misdemeanor assault charges;
he admitted that when a female student came to him for
counseling toward the end of May, 1984, he "rubbed her back
and held her in my arms, in what I felt was a consoling
manner, but apparently to her it was an insulting nature."
The two students with whom Johnson allegedly had sexual
contact also testified that Johnson routinely gave them "back
massages." The principal and assistant principal both
testified that rubbing the neck and shoulders of a young
female student in a locked room on school premises during
school hours constituted improper teacher conduct.
Finding No. 4 involves the sexual contact and attempted
sexual intercourse upon a 14-year-old freshman student
(hereinafter K.B. ) during the year preceding Johnson's
dismissal. K.B. testified in great detail as to the
progression of sexual activity occurring from November of
1983 until June of 1984. She stated that her initial
physical contact with Johnson occurred in the art storage
room at BCHS a few days before Halloween. She massaged his
back after he complained about back aches. Two weeks later
in the same room, he rubbed her shoulders and back. She
testified that a week or so later, he expanded his massage to
include her chest, armpits and breast area. K.R. stated that
shortly thereafter, he began slipping his hand inside her
brassiere and cupping her breasts. She alleged this activity
continued more or less on a daily basis during the week for
the rest of the 1983-84 school. year, generally during her
fifth period Driver's Education class and occasionally at
noon or after school. The three or four days each week when
not driving or being tested, K.B. and two other girls (J.N.
and A.P.) would obtain a pass from Johnson and then go down
to the art room for the period. The testimony of K.B. is
supported by the statement of A.P. that during fifth period,
K.B. and Johnson often would leave the classroom for at least
ten to fifteen minutes at a time. If A.P. or J.N. then
needed assistance while Johnson was gone, they could usually
find him and K.B. in the art storage room. Another student,
in the fifth period art class that year, similarly testified
that K.B. and Johnson would leave class together three to
four days each week and that Johnson was usually gone from
the classroom fifty percent of the period.
The sexual activity with K.B. allegedly escalated in
late March or early April of 1984 to include frequent acts of
sexual intercourse in the art storage room. K.B. further
alleged that Johnson attempted sexual intercourse with her on
a piece of plywood and cloth located in the basement
underneath the girls gym in late April. K.B. testified that
on the last day of May of 1984, Johnson again attempted
sexual intercourse with her on a canvas tarp spread on the
floor of the camera room above the auditorium. K.B.
testified that her last sexual contact with Johnson occurred
on June 18, 1984 in the art storage room.
Several types of circumstantial evidence exist which
indicate that K.B. did in fact become involved in those
sexual activities alleged. Deputy Sheriff Keith Reeder
investigated the area under the gym in late summer and sent
the red cloth and red coveralls found under the gym to the
Missoula Crime Lab. An analysis of the hairs on the
coveralls revealed several with characteristics similar to
K.B.'s hair. The Deputy also collected a canvas from the
camera room and sent hairs found on it to the Crime Lab. An
analysis of the hairs from the canvas revealed one with
characteristics similar to Johnson's hair and several with
characteristics similar to K.B.'s hair. Additionally,
respondent introduced three letters written bv K.B. to her
girlfriend T.B. (who lived in Idaho). These letters detailed
her alleged sexual activities with Johnson. Moreover, Dr.
Myers, a psychologist who met with K.B. nineteen or twenty
times for individual therapy during the summer of 1984 in
regards to this reported incident, stated his opinion that
those incidents of sexual activity with Johnson detailed in
K.D.'s letters were not fantasy.
Finding No. 5 involves the sexual contact in 1983-84
with a 16-year-old student (hereinafter J.N. ) . J.N.
testified that her physical contact with Johnson occurred two
to three weeks after she enrolled in BCHS in Dillon. While
working in the ceramics room after school, Johnson came up
and massaged her neck and shoulders. A few weeks later when
she was in the art storage room during the class period, he
requested her to massage his back and she did so. Shortly
thereafter, she stated he began placing his hands inside her
brassiere and massaging her breasts. She testified this
activity escalated from one to three days per week to a
nearly daily weekday activity. This sexual contact allegedly
occurred in the art storage room generally after school or
during her ceramics or painting class period; J.N. testified
they would be absent from the classroom for 30 to 45 minutes
of the class period. J.N. testified that the last sexual
contact with Johnson occurred three to four weeks before the
end of the 1983-84 school year. She testified that she told
him in letters and verbally that such activity was wrong and
that she thereafter avoided him. She subsequently wrote a
letter to another teacher, Russell Fisk, stating that Johnson
had rubbed her neck and back and "one day went farther."
Teacher Fisk confirmed his receipt of such a letter which he
admitted contained "sexual implications." This letter was
later passed on to school counselor Gwen Brott. Brott
testified that she destroyed this letter. The misdemeanor
assault charge, to which Johnson pled guilty, further
indicates some physical contact occurred between Johnson and
J.N. In his plea, Johnson admitted that in May of 1984 he
had rubbed her back and held her in his arms to console her.
Appellant Johnson introduced a substantial amount of
testimony by students and teachers alike in regards to his
excellent teaching abilities, his caring nature, and as to
the amount of time he was absent from classes each day.
However, this Court is not charged with re-weighing the
evidence to determine whether the dismissal was in fact made
with good cause. Rather,we may only review the entire record
to determine whether reliable, probative and substantial
evidence existed to support the County Superintendent's
decision dismissing Johnson. All the above-cited evidence is
sufficient to meet this standard and to support the
allegations of sexual activity. Such sexual activity by a
41-year-old married teacher with two of his minor female
students indeed supports the conclusion of his immorality and
unfitness. Further, a teacher is charged by statute with
providing "moral and civic instruction" to students and with
"endeavoring to impress the pupils with the principles of
morality, truth, justice, and patriotism." Section
20-4-301 (1)(f), MCA. The evidence of Johnson's sexual
activity with students indicates he failed to discharge these
duties with which he was charged. We therefore hold good
cause existed supporting Johnson's dismissal for immorality,
unfitness and his failure to fulfill his duties as a teacher.
The District Court did not abuse its discretion when it
affirmed the County Superintendent's dismissal of Johnson.
Appellant's second argument is that he was wrongfully
deprived of his right to a de novo hearing because the County
Superintendent considered the transcripts and the videotaped
testimony of K.B. and J.N. taken during the School Board
hearing. Appellant contends a de novo hearing mandates a
decision based only on those facts adduced at the hearing
before the County Superintendent. We disagree.
Section 20-3-210 (2), MCA requires a county
superintendent to base a dismissal decision upon those facts
established at the hearing conducted before him or her. This
Court has interpreted this section as requiring a de novo
hearing before a county superintendent. Yanzick, 641 P.2d at
437. When conducting this hearing, a county superintendent
is governed by the rules set forth in § 2-4-612, MCA.
Section 2-4-612(2) expressly allows a county superintendent
to receive any part of the evidence in written form if the
"hearing will be expedited and the interests of the parties
will not be prejudiced substantially" by admission of such
evidence.
The transcripts from the School Board hearing, as
written evidence, were properly admissible under
§ 2-4-612(2), MCA because they did not substantially
prejudice appellant and they did expedite a determination of
the issue. The Board transcripts are largely duplica-tive of
that testimony given before the County Superintendent. They
do not introduce any substantially new evidence.
Additionally, the appellant had every opportunity to
cross-examine those witnesses whose testimony was
transcribed. Consequently, appellant may not claim
substantial prejudice.
Admission of the transcripts, which included the
testimony of K.B. and J.N., also helped expedite the hearing
before the County Superintendent. The testimony of K.B. and
J.N. was essential to a determination of the appeal. Yet,
K.B. and J.N. were both unavailable to testify at the time of
the second hearing. See 8 0 4 (a)( 5 ) , M.R.Evid. This
unavailability was not due to any wrongdoing by the
respondent. Both girls had moved outside the State of
Montana with their respective families after the 1 9 8 3 - 8 4
school year. Respondent went through the formality of
issuing subpoenas to the last known address of each girl
within Montana to prove that service of process upon them was
not possible within the State and to indicate respondent's
inability to procure their attendance through process.
Admission of the two girls' transcribed testimony prevented a
delay of the hearing until the two girls could be present.
No statutory provision expressly provides for the
admission of videotaped testimony in a de novo hearing such
as that hearing conducted before the County Superintendent.
Further, even if the videotape was properly admissible, it
was not taken in compliance with the requirements found in
Rule 3 0 (h), M.R.Civ.P. , a section providing those procedures
mandated for videotaped depositions. However, we need not
determine the issue of whether the admission of the videotape
in this case was proper. Admission of the videotaped
testimony did not substantially prejudice the appellant. The
audio testimony of the two girls recorded on the videotape is
duplicated in the Board transcripts, which we have just held
were properly admissible. The videotape does not introduce
any new evidence without giving appellant an opportunity to
cross-examine the witnesses. As previously noted in this
opinion, appellant had the opportunity to fully cross-examine
the two girls during the Board hearing. We therefore hold
that neither admission of the videotaped testimony nor
admission of the Board transcripts acted to deprive appellant
of his right to a de novo hearing before the County
Superintendent.
Having found that substantial, reliable and probative
evidence indicated Johnson was dismissed for good cause and
that appellant was properly afforded his right to a de novo
trial, we affirm the judgment of the District Court upholding
the decision by the County Superintendent to dismiss
appellant.