NO. 93-021
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
TRUSTEES, CARBON COUNTY
SCHOOL DISTRICT NO. 28,
Petitioner and Respondent, '.
V. 1,
t
HELEN SPIVEY, DEC22 1993
Respondent and Appellant. ta 3',,&4. ':
CLERKOFSUPR@MECOURT:
STATE OF MONTANA
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Carbon,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Emilie Loring, Attorney at Law, Missoula, Montana
For Respondent:
Laurence R. Martin and Sol Lovas, Felt, Martin
& Frazier, Billings, Montana
Submitted on Briefs: August 26, 1993
Decided: December 22, 1993
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal from a Thirteenth Judicial District Court,
Carbon County, order reversing the State Superintendent's reversal
of a County Superintendent's conclusion that the Trustees of Carbon
County School District No. 28 correctly terminated Helen Spivey's
teaching contract. We affirm.
We restate the issues on appeal:
I. Did the trial court use the correct standard of
review when it reversed the State Superintendent's
decision?
II. Should County Superintendent Reynolds have reviewed
this action de nova?
III. Did the State Superintendent correctly conclude
that:
A. there was not substantial evidence to support
County Superintendent Reynolds' conclusion that
Spivey's teaching contract was correctly
terminated?
B . Reynolds erred in concluding that Spivey's
termination was not premature?
C. Reynolds erred in concluding that Spivey could
be terminated because of insubordination?
FACTS
Appellant, Helen Spivey (Spivey) was a Montana certified,
tenured teacher in the Carbon County School District No. 28. The
Respondents are the Trustees of the Carbon County School District
No. 28 (Trustees).
Spivey had taught in a multi-grade classroom at Boyd School in
Carbon County for 8 years. The teaching staff at Boyd School
consisted of one teacher, Spivey and one aide, Kathy Grewell.
2
Problems arose during the 1985-1986 school year which culminated in
a letter to Spivey from Bruce McKee, a school board trustee, to
inform her that there had been a recommendation to terminate her
teaching contract. She waived the right to a hearing before the
Trustees. In a letter from the Trustees, dated March 31, 1986,
Spivey was notified that they had voted unanimously to terminate
her teaching contract and "not offer [her] a new contract for the
ensuing 1986-1987 school year." Further facts will be provided as
necessary in the body of the opinion.
PROCEDURAL BACKGROUND
Spivey appealed the Trustees' decision to the county
Superintendent of Schools, Carbon County. Edith Evans (Evans),
Deputy County Superintendent of Schools, Stillwater County, sat in
place of Peggy Kotar (Kotar), Superintendent of Schools, Carbon
County, who had disqualified herself. Evans reversed the decision
of the Trustees, concluding that "Spivey was given inadequate
opportunity to remedy the problems" and "[t]he admissible
evidence... is insufficient to establish good cause for Spivey's
termination....*' (County Decision I) Evans ordered reinstatement
of Spivey as a tenured teacher in the Boyd School "with no loss in
salary or fringe benefits." The Trustees appealed this decision to
the State Superintendent of Public Instruction, Ed Argenbright
(Argenbright). Argenbright reversed Evans' decision and affirmed
the Trustees. (State Decision I)
Spivey appealed Argenbright's order to the First Judicial
District Court, Lewis and Clark County. (District Court Decision I)
3
The trial court made the following conclusions:
1. "Good cause can be based only on competent evidence
regarding the actions or inactions of the teacher in question."
2. Letters from parents who were available to testify at the
hearing could be considered for content containing parents'
observation and parents' intentions. Information contained in the
letters of descriptions of what the children told their parents
should have properly been excluded as hearsay.
3. Letters from Mr. Christensen, Superintendent of Yellowstone
County Schools and letters from parents unavailable to testify at
the hearing were properly excluded.
4. Since the State Superintendent did not address the County
Superintendent's conclusion that Spivey was not given adequate time
to address her problem areas (with the exception of playground
supervision), the County Superintendent's conclusion was affirmed.
5. The State Superintendent's conclusion that there was
substantial credible evidence of insubordination must be reversed
because it was not part of the County Superintendent's findings
below.
6. Because evidence was improperly excluded when the County
Superintendent made her initial decision, the case was remanded to
the County Superintendent to reconsider the evidence in light of
these holdings to determine whether there was reliable, probative
and substantial evidence to find good cause for Spivey's
termination.
On remand, the case was considered by Acting County
4
Superintendent of Schools, Carbon county, Carole Reynolds
(Reynolds). (County Decision II) Reynolds reviewed the transcript
de novo, concluding that "loss of confidence in the teacher was
justified and is just cause for termination." She also concluded
that insubordination was just cause for termination and Spivey was
insubordinate on at least three occasions. Finally, she concluded
that Spivey's actions were "patently unacceptable and the
termination of Petitioner was not Premature."
Reynolds' decision was appealed to the Superintendent of
Public Instruction Nancy Keenan (Keenan). (State Decision II)
Keenan reversed Reynolds' decision, concluding that Reynolds erred
in finding that Spivey could be terminated for insubordination: she
erred in finding that Spivey's termination was not premature: and
finally, that she erred in holding "that there was reliable,
probative and substantial evidence on the whole record which
identifies actions or inactions of Spivey which resulted in loss of
parental confidence and potential loss of students."
The State Superintendent's order was appealed to the
Thirteenth Judicial District Court, Carbon County. (District Court
Decision II) The District Court reversed the State Superintendent
and affirmed the findings of fact and conclusions of law of the
County Superintendent of Stillwater County. The court concluded
that there was substantial evidence to uphold Reynolds' finding
that parents had lost confidence in Spivey. It further concluded
that this loss of confidence was based on specific actions and
inactions by Spivey and the State Superintendent should have
5
affirmed the County Superintendent's conclusion that loss of
parental confidence was good cause for termination. The court also
determined that the County Superintendent's conclusion that
Spivey's insubordination was good cause for termination was
correct. Finally, the court determined that the evidence suggested
that Spivey's actions were patently unacceptable because parents
had threatened to remove their children from the school. Because
these actions were patently unacceptable, the County Superintendent
correctly concluded that Spivey's termination was not premature.
Spivey appealed the District Court's order to this Court which
brings us to the present action.
STANDARD OF REVIEW
Our standard of review for findings of fact is whether a
finding is "clearly erroneous." Steer Inc. v. Department of
Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603. ” [Al
finding is 'clearly erroneous' when, although there is evidence to
support it, a review of the record leaves the court with the
definite and firm conviction that a mistake has been committed."
Steer, 803 P.2d at 603. Our standard of review for conclusions of
law is whether the tribunal's interpretation of the law is correct.
Steer, 803 P.2d at 603.
OPINION
Spivey argues that the District Court did not correctly apply
5 2-4-704, MCA, and that it substituted its judgment for that of
the State Superintendent. It was the State Superintendent's job to
determine whether the County Superintendent exceeded her authority
6
upon remand of the case and whether the admissible evidence
Reynolds reviewed established good cause for terminating Spivey's
contract. The District Court was "then limited to the standards of
review of the Administrative Procedure Act. In deciding matters
not before him the District Judge exceeded the proper scope of
review." Finally, Spivey argues that there is substantial evidence
in the record to support the findings and conclusions of the State
Superintendent and that she should have been affirmed.
The Trustees state that what Spivey is really arguing is that
the District Court reviewed the wrong decision - it should have
reviewed "the State Superintendent's decision for factual support
and legal error, rather than reviewing the County Superintendent's
decision." They contended that she then proceeded to argue two
issues that were not really stated in her statement of the issues.
She argues that Reynolds exceeded the scope of her authority on
remand from the First Judicial District Court and that the facts on
the record support the State Superintendent's decision but do not
support the County Superintendent's findings and conclusions.
I. CORRECT STANDARD OF REVIEW
The proper standard of review in a case such as this, which is
reviewed at a number of different levels, has caused a great deal
of confusion. We therefore take this opportunity to clarify this
area of the law. The decision of the county superintendent is
subject to review by the state superintendent under Rule 10.6.125
ARM, which provides as follows:
10.6.125 APPELLATE PROCEDURE - STANDARD OF REVIEW
(l)The state superintendent of public instruction shall
7
be subject to the standard of review as set forth below
and shall be confined to the record established at the
factfinding hearing.
(2) In cases of alleged irregularities in procedure
before the county superintendent not shown on the record,
proof thereof may be taken by the state superintendent.
(3) The state superintendent, at his/her discretion
or upon request, may hear oral arguments and receive
written briefs.
(4) The state superintendent may not substitute
his/her judgment for that of the county superintendent as
to the weight of the evidence on questions of fact. The
state superintendent may affirm the decision of the
county superintendent or remand the case for further
proceedings or refuse to accept the appeal on the grounds
that the state superintendent fails to retain proper
jurisdiction on the matter. The state superintendent may
reverse or modify the decision if substantial rights of
the appellant have been prejudiced because the findings
of fact, conclusions of law and order are:
(4 in violation of constitutional or statutory
provisions:
(b) in excess of the statutory authority;
(c) made upon unlawful procedure:
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable,
probative and substantial evidence on the whole record;
(f) arbitrary or capricious or characterized by
abuse of discretion or clearly unwarranted exercise of
discretion;
affected because findings of fact upon issues
essenE1 to the decision were not made although
requested.
The decision of the state superintendent, in turn, is subject to
review by a district court under 5 2-4-704, MCA, which provides:
Standards of review. (1) The review shall be conducted
by the court without a jury and shall be confined to the
record. In cases of alleged irregularities in procedure
before the agency not shown in the record, proof thereof
may be taken in the court. The court, upon request,
shall hear oral argument and receive written briefs.
(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:
a
(a) the administrative findings, inferences,
conclusions, or decisions are:
(i) in violation of constitutional or statutory
provisions;
(ii) in excess of the statutory authority of the
agency:
(iii) made upon unlawful procedure;
(iv) affected by other error of law;
(VI clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole record;
(vi) arbitrary or capricious or characterized by
abuse of discretion or clearly unwarranted exercise of
discretion; or
(b) findings of fact, upon issues essential to the
decision, were not made although requested.
Section 2-4-704, MCA, and Rule 10.6.125, ARM, are almost
identical. The salient points in both are that the reviewing body
may not substitute its judgment for that of the lower body as to
the weight of the factual evidence and that the reviewing body may
affirm, remand, reverse or modify the prior decision. Both require
reversal or modification of a decision of a lower body if
substantial rights of the appellant have been prejudiced because of
certain errors found in the lower body's findings and conclusions.
The major cause of confusion in the instant case is whether,
under § 2-4-704, MCA, a district court should review the decision
of the county superintendent or the decision of the state
superintendent.
A district court, reviewing a decision appealed from the state
superintendent, which was appealed from a county superintendent's
decision, must review the decision of the state superintendent.
Trustees, Missoula Cty S.D. 1 v. Anderson (1988), 232 Mont. 501,
504, 757 P.2d 1315, 1317. However, in order to review the decision
of the state superintendent and insure that she has correctly
9
reviewed the county superintendent's decision, the district court
must review the findings and conclusions of the county
superintendent. The district court must decide whether the county
superintendent's findings and conclusions were supported by
reliable, probative and substantial evidence in the first instance
in order to determine whether the state superintendent reviewed and
correctly affirmed or reversed the decision of the county
superintendent.
Here, the District Court correctly reviewed State Decision II
but it could not do so without focusing on County Decision II
first. It properly reviewed County Decision II, noting that the
conclusions were supported by reliable, probative and substantial
evidence, and concluded that because the County Superintendent
properly determined that Spivey's contract was terminated for good
cause, the State Superintendent should have affirmed County
Superintendent Reynolds' decision. (We note that the county
superintendent is required to hold a de novo hearing when deciding
a controversy between the school and a teacher whose contract was
terminated. Yanzick v. School District No. 23, Etc. (1982), 196
Mont. 375, 641 P.2d 431.)
The District Court determined that differences in the findings
and conclusions of County Decision II from those of County Decision
I were not improper because the District Court Decision I
instructed Reynolds, upon remand, to review additional evidence
which had been previously excluded. The court noted that the
additional evidence included "such items as the children's
10
attitudes toward school, the lack of discipline at school, the
parents' dissatisfaction with their conversations with Spivey about
their children's problems, and Spivey's failure to respond to such
problems." This evidence led County Superintendent Reynolds to
conclude that Spivey's contract was correctly terminated, and the
State Superintendent should have affirmed this decision because the
County Superintendent's decision was based on substantial evidence.
II. COUNTY DECISION II
Spivey argues that County Superintendent Reynolds should not
have reviewed the entire record de novo, when deciding County
Decision II. Rather, she should have considered specific evidence,
such as "the parents' intentions and observations and whether
Spivey had adequate opportunity to improve her playground
supervision...." The Trustees counter that "County Superintendent
Evans' findings were voided and entirely thrown out by Judge
Bennett when he ruled that the key issues - good cause and
prematureness - had to be entirely reconsidered. Therefore, the
case stood in the position of having a hearing record, but no
findings on the key issues of good cause and prematureness."
We conclude that County Decision II was properly based on a de
novo review of the record. When the original trial level official
is replaced, a subsequent trial level official has the authority to
make new findings and conclusions if there is no protest from
either of the parties. As stated in Phalen v. Rilley (1970), 154
Mont. 399, 403, 465 P.2d 102, 105. citing Worden v. Alexander et
al. (1939), 108 Mont. 208, 211, 90 P.2d 160, 161:
11
While there is some conflict in the authorities, the
decided weight of authority is that when the trial judge
to whom the case has been submitted upon evidence
introduced before him dies before making findings of
fact, his successor has no authority to make findings of
fact and conclusions of law without the consent of the
parties involved; in such a case any party has the right
to insist upon a new trial. (Citing cases.) However, a
party may waive his right to a new trial and consent that
the successor may decide the case made on the record
before the trial judge. (Citing cases.)
We find this proposition applies in this case. Nothing in the
record suggests that Spivey protested against the substitution of
County Superintendent Reynolds nor did she request a new trial. In
addition, when the case was remanded by the First Judicial District
Court with the proviso, "so that she can reconsider the evidence in
light of our holdings and make a determination on these issues,"
the County Superintendent was given latitude in her decision-making
beyond the parameters of County Decision I. Zavarelli v. Might
(1989) r 239 Mont. 120, 125-126, 779 P.2d 489, 493, is instructive:
We come now to the effect of the mandate from this
Court to the District Court when, on reversal and
remittitur, the District Court was instructed to take
t'such further proceedings as are necessary in light of
this opinion and the facts found by the District Court."
"On remand, the trial court may consider or decide any
matters left open by the appellate court, and is free to
make any order or direction in further progress of the
case, not inconsistent with the decision of the appellate
court, as to any question not presented or settled by
such decision. The issues are generally open on a
retrial when a case is reversed and remanded for further
proceedings. If the mandate speaks only in the light of
the special facts found, the lower court is at liberty to
proceed in all other respects in the matter that,
according to its judgment, justice may require. The
trial court should examine the mandate and the opinion of
the reviewing court and proceed in conformity with the
views expressed therein. The mandate is to be
interpreted according to the subject matter and, if
possible, in a manner to promote justice." (Citation
12
omitted.)
Additionally Zavarelli continues:
When this Court reversed the first judgment of the
District Court as to a prescriptive easement, and
remanded the cause to the District Court for further
proceedings, the cause was then before the District Court
in the posture of not having a final judgment. In that
situation, when there is nothing in the terms of the
mandate to prevent it, the trial court has the power, on
reconsideration, to find the same facts and change its
holding, or to find different facts consistent with its
original holding.
Zavarelli, 779 P.2d at 493. (Citation omitted.)
District Court Decision I stated:
Neither this Court nor the State Superintendent is
empowered to weigh the evidence in this case. By the
same token this Court cannot act as an expert in matters
of teacher termination. Thus, we are unable to determine
whether, with the inclusion of the previously excluded
evidence, there is good cause to justify termination.
Further, we have heard no argument and make no holding as
to whether, in any event, Spivey's termination was
premature because she had not been given adequate
opportunity to address the identified problems or whether
her actions were so patently unacceptable that she could
be termination (sic) without such an opportunity.
Therefore it is hereby ORDERED that this case be
remanded to the County Superintendent so that she can
reconsider the evidence in light of our holdings and make
a determination on these issues.
The District Court left open the determination of good cause
for the termination of Spivey's contract and the prematureness of
her contract termination and whether Spivey's actions were so
patently unacceptable that she could be terminated without an
opportunity to adequately address the problems. County
Superintendent Reynolds was free to determine anew the issues in
the present action in County Decision II.
III. STATE SUPERINTENDENT'S CONCLUSIONS
13
The State Superintendent in State Decision II concluded that
there was not substantial evidence in County Decision II to support
Reynolds' conclusions of law that Spivey's teaching contract was
properly terminated, that Reynolds' erred in determining that
Spivey's termination was not premature and in determining that
Spivey could be terminated because of insubordination.
A. SUBSTANTIAL EVIDENCE TO TERMINATE CONTRACT
Spivey contends that the State Superintendent correctly
determined that Where was not reliable, probative and substantial
evidence on the whole record which identified actions or inactions
of Spivey which resulted in loss of parental confidence and
potential loss of students." However, a close review of the record
reveals that the District Court properly concluded that there was
substantial evidence on the record to support County Superintendent
Reynold's conclusion that actions and inactions of Spivey resulted
in loss of confidence by parents, particularly when Reynolds
reviewed the evidence which had been excluded in County Decision I.
A number of parents reported that their children were unhappy and
disenchanted with school. There were eyewitness accounts of
incidents of lack of supervision and disciplinary problems with the
children. A number of parents stated that they would remove their
children from the school if the teacher was retained. Because
reliable, probative and substantial evidence supports Reynolds'
determination that Spivey had lost the confidence of the parents
due to her various actions and inactions, the State Superintendent
substituted her judgment for that of the County Superintendent and,
14
thus, erred in reversing this conclusion in County Decision II
B. PREMATURENESS OF TERMINATION
Spivey contends that Reynolds erred in concluding that the
termination of her contract was not premature. She also asserts
that Reynolds had no jurisdiction to make a decision regarding
whether the termination was premature. The Trustees, on the other
hand, state that the County Superintendent correctly held that the
problems were so serious as to be patently unacceptable and
therefore a period of remediation was not required. The Trustees
further assert that since Spivey would not admit to any problem
areas, a period of remediation would have been useless.
We conclude that County Superintendent Reynolds properly
determined that Spivey's termination was not premature. District
Court Decision I provides the framework within which County
Decision II was to have been decided and it provides:
[W]e have heard no argument and make no holdinq as to
whether, in any event, Spivey's termination was premature
because she had not been given adequate opportunity to
address the identified problems or whether her actions
were so patently unacceptable that she could be
termination (sic) without such an opportunity. (Emphasis
added.)
Clearly, in its final holding, the issue of whether Spivey's
termination was premature was left open for decision in County
Decision II. Spivey argues, however, that the District Court
Decision I concluded that Spivey did not have adequate time to
address the problems other than playground supervision. Spivey
cites the District Court decision, page 14, lines 7-14 which
states:
15
We reiterate however that the State Superintendent made
no findings or conclusions regarding the other items
[other than playground supervision] listed in the
directives. Therefore, we infer that he agreed with the
County Superintendent [Evans] that Spivey had not been
given adequate opportunity to remedy these problems.
Because there is no disagreement, we will not review this
issue and further affirm the County Superintendent's
conclusion that Spivey had not been given adequate
opportunity to address the other problems.
Although this passage is indeed, inconsistent with the passage
aforementioned, the trial court's final holding in District Court
Decision I is determinative. It clearly states that it makes no
holding as to the issue of whether Spivey had an adequate
opportunity to address the identified problems. Therefore, this
issue was left open for County Superintendent Reynolds to decide
after a de nova review in County Decision II.
There was sufficient evidence presented to establish actions
which resulted in parents ' threats to withdraw their children from
the school. There was also evidence that Spivey would not
acknowledge that there were deficiencies upon which to improve.
This evidence is sufficient to support a conclusion that the County
Superintendent did not abuse her discretion in determining that
Spivey's actions and inactions were patently unacceptable and that
she could be terminated without an opportunity to improve her
deficient areas. Hence, the State Superintendent erred in
reversing the County Superintendent in State Decision II. As was
so aptly stated in Siglin v. Kayenta Unified School Dist. No. 27
(Ariz. 1982), 655 P.2d 353, 357,
[I]t was not the function of the trial court to determine
whether there was evidence to support a conclusion that
Mr. Siglin should have been retained. Rather, it was the
16
function of the trial court to determine whether
reasonable evidence supported the school board's
determination that good cause existed for dismissal.
(Citations omitted.)
This reasoning applies equally to the State Superintendent and the
District Court in this case. The function of both levels of review
is to determine whether the original hearing officer's findings of
fact are supported by substantial evidence and the conclusions of
law are not characterized by an abuse of discretion. Here, the
District Court correctly concluded that County Superintendent
Reynolds could properly consider the issue of whether Spivey's
termination was premature and that she properly determined that the
termination was not premature because Spivey's actions were
patently unacceptable.
C. INSUBORDINATION
Finally, Spivey contends that the issue of insubordination was
not remanded by the District Court and the County Superintendent
did not have jurisdiction to consider evidence on insubordination.
As stated earlier in this opinion, the "trial courtl* may consider
any issues left open by the appellate court in further progress of
the case and may proceed in all other respects as justice may
require. Zavarelli, 779 P.2d at 493. The County Superintendent
appropriately considered the issue of insubordination because there
was substantial evidence that she left the school premises before
the end of the school day, failed to attend board meetings and
failed to supervise the students on the playground after a mandate
to that effect had been issued. Insubordination, in itself, can be
a reason for termination of a teaching contract. Ware v. Morgan
17
cty . School D. No. E-3 (Col. 1988), 748 P.2d 1295; Siqlin, 655
P.2d at 357.
In conclusion, County Decision II is supported by substantial
credible evidence and the County Superintendent did not abuse her
discretion in formulating her conclusions of law. The State
Superintendent, however, erred in not affirming the County
Superintendent's decision and in substituting her own judgment for
that of the County Superintendent. Finally, the District Court
correctly reviewed the State Superintendent's decision by focusing
upon the County Superintendent's findings and conclusions and
concluding that County Decision II was supported by the record.
AFFIPWSD.
We Concur:
18
Justice Terry N. Trieweiler specially concurring in part and
dissenting in part.
I concur in that part of the majority opinion which discusses
the proper standard of review in a case like this which originated
before the County Superintendent, and after an intermediate state
level of review, was appealed to the State District Court.
However, I dissent from that part of the majority opinion
which affirms the decision of the second County Superintendent
because I conclude that it was contrary to the first District
Court's decision, exceeded the scope of issues to be decided on
remand, and was contrary to the law of the case as established by
the first District Court appeal.
In the first District Court opinion, Judge Gordon Bennett
concluded that this case should be remanded to the County
Superintendent for determination of whether there was good cause to
support Spivey's termination considering parents' observations
which were not considered in the first decision. However, he
specifically held that loss of parental confidence did not
establish good cause for termination, and that insubordination,
since not raised on appeal, could not form the basis of Spivey's
termination.
He held that "good cause cannot be based on strictly external
factors such as community hostility. Good cause can be based only
on competent evidence regarding the actions or inactions of the
teacher in question."
With regard to insubordination, he held that:
19
Initially, we note that the County Superintendent
did not make any finding or conclusion on the trustees'
allegation of insubordination and that the trustees did
not assert this omission as error in the appeal to the
State Superintendent. Nevertheless, the State
Superintendent found that there was substantial credible
evidence of insubordination. . . . Spivey has challenged
this finding.
The Montana Supreme Court has stated explicitly
that: "Findings of the reviewing agency properly cannot
be included as facts when they are not part of the
findings below." Thus, we must reverse the State
Superintendent on this issue. [Citation omitted].
This case was not remanded by the original District Judge to
the County Superintendent for further findings regarding
insubordination. He concluded that because the Trustees had not
appealed the failure of the original County Superintendent to find
insubordination, that that issue could not be raised on appeal, and
the absence of insubordination was a final determination.
However, on remand, the second County Superintendent based her
decision to uphold the termination of Spivey on two conclusions:
(1) "loss of confidence in the teacher;" and (2) "insubordination."
These conclusions were contrary to the law of the case as
established by the District Court and should be reversed.
I also conclude that the second County Superintendent ignored
the mandate from the District Court regarding the determination of
whether or not Spivey's termination was premature. The District
Court concluded that Spivey had been given adequate notice that her
playground supervision was deficient, and had been given an
adequate opportunity to correct that aspect of her performance.
However, the court went on to add that since the State
20
Superintendent made no findings or conclusions regarding Spivey's
opportunity to correct other alleged deficiencies in her
performance,
[w]e infer that he agreed with the County Superintendent
that Spivey had not been given adequate opportunity to
remedy these problems. Because there is no disagreement,
we will not review this issue and further affirm the
County Superintendent's conclusion that Spivey had not
been given adequate opportunity to address the other
problems.
In conclusion, the District Court held that:
Further, we have heard no argument and make no holding as
to whether, in any event, Spivey's termination was
premature because she had not been given adequate
opportunity to address the identified problems or whether
her actions were so patently unacceptable that she could
be termination [sic] without such an opportunity.
Based on these two conclusions by the District Court, the
County Superintendent was left with two options. She could
conclude that Spivey's termination was justified based on
inadequate playground supervision alone, or she could conclude,
based on the additional evidence, that there was good cause for her
termination based on other deficiencies in her performance, and
that those deficiencies were "so patently unacceptable that she
could be terminated without an opportunity to correct her
inadequacies." On remand, the second County Superintendent did
neither. She did not base her conclusion that there was good cause
for termination on inadequate playground supervision. She did
conclude that Spivey's conduct was patently unacceptable, but did
not set forth the particulars in which it was patently unacceptable
so that a reviewing court could determine whether or not Spivey's
21
conduct created a legal exception to the rule that tenured teachers
are entitled to an opportunity to cure inadequacies in their
performance. The only reasons given as justification for Spivey's
termination were loss of parental confidence and insubordination,
which, for the reasons set forth previously, were beyond the scope
of the issues to be considered by the County Superintendent on
remand from the District Court.
For these reasons, I dissent from that part of the majority
opinion which holds that the second County Superintendent did not
abuse her discretion by exceeding the scope of her mandate from the
District Court.
Justice William E. Hunt, Sr., joins in the foregoing concurrence
and dissent.
Justi