concurring. I fully concur with the result reached in this case because I am convinced that the school board had not formally decided not to renew the contract of Thomas Chapman. While it is true that the written policies of the school board appear to be contrary to Arkansas law, I am convinced that this technical infraction should not control the outcome of the litigation; the school board intended to notify Chapman he would not be rehired, but reserved to Chapman the right to a formal hearing.
There is no doubt that the school boards and the teachers will continue to adjust to the Teachers Fair Dismissal Act. Ark. Stat. Ann. § 80-1264 et seq. (Repl. 1980). All school boards should make certain that their policies are in compliance with the new law and that their policies are consistent with the new law.
In a series of cases we have tried to interpret the Teachers Fair Dismissal Act and it may be that some of our decisions appear to be inconsistent. For that reason I file this concurring opinion.
We decide our cases on the basis of the case and controversy theory. That is, we make our decisions based on the facts and issues that are presented to us on appeal and no other. That is what we are supposed to do. Using that method we have dealt with this Act in seven cases. We have decided that a probationary teacher, that is, one who has not completed three successive years of employment, is not entitled to a hearing before the school board if that teacher’s contract is not renewed. That principle was set forth in McElroy v. Jasper School District, 273 Ark. 143, 617 S.W. 2d 356 (1981), and confirmed in our decisions of this date in the cases of Nordin v. Hartman Public Schools and Allred v. Little Rock School District. In McElroy there was no question raised on appeal of whether the teacher had a right. to a hearing or whether the right existed to appeal from a decision by the school board to not renew a contract. The school board on its own decided to give the teacher a hearing. The decision was appealed to the circuit court and appealed to us without regard to any question of the right to a hearing or to an appeal. The question was directly raised in the Allred case and we have confirmed that the Teachers Fair Dismissal Act does not give a probationary teacher a right to a hearing or a right to appeal from a school board decision. These two decisions might appear to be inconsistent with our decision in Springdale School District v. Jameson, 274 Ark. 78, 621 S.W. 2d 860 (1981) which was before us on a petition for a writ of prohibition. Numerous issues were raised in the Jameson case and because of the unusual and extraordinary nature of a writ of prohibition, we declined in that case to issue one. In my judgment Jameson did not mean and should not be interpreted to mean that there is a right to appeal to circuit court.
In the case of Maxwell v. Southside School District, 273 Ark. 89, 618 S.W. 2d 148 (1981), we found that the school board had not substantially complied with its own policies; it had in fact heard evidence before it decided to give Maxwell a hearing, then decided to give Maxwell a hearing at which it confirmed its original decision. We said that this was a violation of its own policies. Whether Maxwell was entitled to a hearing in the first place under the Teachers Fair Dismissal Act was not a question raised below. Nor was the question raised of whether Maxwell had a right to appeal from the decision. Since neither of those questions was raised on appeal we did not consider them in our decision.
In five cases we have held that the school board must substantially comply with either its procedures or the Teachers Fair Dismissal Act. That principle was announced in Maxwell v. Southside School District, supra; McElroy v. Jasper School District, supra; Allred v. Little Rock School District, supra; Fullerton v. Southside School District, 272 Ark. 288, 613 S.W. 2d 827 (1981); and now in this case.
In dictum in the McElroy case we indicated that a probationary teacher did have a right to a hearing if that teacher was terminated during the term. In Allred v. Little Rock School District, supra, and Nor din v. Hartman Public Schools, supra, the majority confirms the dictum in McElroy. My concurrence with all the decisions in this matter has been on the basis of my understanding of our holdings as I have stated them in this opinion. There are several issues we have not decided. I will reserve judgment on those until they are presented on appeal.