dissenting.
I respectfully dissent. The majority, citing Drain v. Board of Ed. of Frontier Cty., 244 Neb. 551, 508 N.W.2d 255 (1993), correctly sets forth our standard of review in an error proceeding as the determination of whether the school board acted within its jurisdiction and whether there is sufficient evidence as a matter of law to support its decision. The evidence is “sufficient as a matter of law” if a judge could not, were the trial to a jury, direct a verdict; it is something less than the weight of the evidence and can be such as to permit the drawing of two inconsistent conclusions. Stephens v. Board of Ed. of Sch. Dist. No. 5, 230 Neb. 38, 429 N.W.2d 722 (1988); Eshom v. Board of Ed. of Sch. Dist. No. 54, 219 Neb. 467, 364 N.W.2d 7 (1985). In order to support a board decision, the record must be such that on the basis of all the testimony and exhibits, the board could fairly and reasonably find the facts as it did. See Eshom, supra.
However, rather than determining whether the board “could fairly and reasonably find the facts as it did,” id. at 471, 364 N.W.2d at 11, and reviewing the record to ascertain whether there is “sufficient evidence as a matter of law,” id., to support the board’s decision, the majority conducts what more closely resembles a de novo review, substituting its own inferences for the legitimate findings and conclusions of the board.
After hearing and observing the testimony of 28 witnesses and reviewing 51 exhibits, the board found, among other things, that Boss had acted in an unprofessional manner by (1) touching a staff teacher, Julie Johnson, in an inappropriate manner; (2) making inappropriate comments toward Johnson; and (3) placing his arm around female students in a way that some teachers, who observed the incidents, considered unprofessional. From these and other findings, the board concluded that Boss’ actions constituted a material breach of his contract with the school district and substantially interfered with Boss’ ability to discharge his duties as superintendent of schools. Thus, the board canceled Boss’ employment contract based, in part, on the foregoing findings and conclusions.
I particularly disagree with the majority’s characterization of the evidence regarding Boss’ unprofessional conduct as an occasional touching of male and female employees on the knee *686or shoulder when speaking with them. The record, when reviewed in its entire context under a sufficiency of evidence standard, reveals something quite different. Johnson, a kindergarten and “Chapter 1” teacher, testified at length about her professional relationship with Boss. Johnson testified that whenever Boss was around her, he seemed to need to touch her in some way; for example, by putting his arm around her or rubbing her neck. She said she “thought maybe my body language would let him know to sort of stay away ...” Instead of getting the message, Johnson said, Boss “would just [laugh] in a matter of fact way.” Johnson testified that Boss would come up to her while she was at the copy machine and rub her neck. Johnson said that she told Boss to get away and that Boss’ conduct made her uncomfortable.
Johnson testified that she and another teacher cohosted a lingerie party and invited all the women faculty members. When Johnson went to Boss’ office for some unrelated reason, Boss, on his own, brought up Johnson’s upcoming party and asked whether she needed a male model for it. Boss said that when he was a football coach his “muscles .. . were this big,” gesturing to his arms and thighs.
On April 15, 1993, Johnson was scheduled to attend a Chapter 1 conference in Lincoln. Boss, who administers the Chapter 1 program, initially could not attend the same conference due to a previous commitment. However, Boss’ commitment required him to attend a meeting which was also in Lincoln.
Johnson did not want to travel to Lincoln with Boss. In order to avoid traveling with Boss, Johnson told him she wanted to drive to Lincoln on her own so that during the conference lunch break, she could run some errands. Johnson said that when she told Boss of her travel plans, he became visibly upset, as evidenced by the fact that his mouth started to quiver, and he began grabbing the change in his pocket. Boss overruled Johnson and requested that she ride with him to Lincoln in a school district car.
Boss’ meeting was not scheduled until the afternoon, so he elected to attend the morning session of the Chapter 1 conference with Johnson. When the conference broke for lunch, *687Boss dropped Johnson off at a shopping mall and promised to return by 1 p.m. so that she could attend the conference’s afternoon session. Boss was 45 minutes late returning from lunch. Boss apologized and suggested that since they had already missed most of the afternoon session, it would not be worthwhile to return for what remained of the conference.
Johnson responded that they could either go back to the conference or back to Fairmont, the location of the school. Johnson testified that Boss just started laughing and suggested they go for a drink. Johnson repeated herself and said, “[Ejither the meeting or Fairmont.” Boss chose to return to Fairmont.
Johnson testified that during the return trip to Fairmont, she sat as far away from Boss as she could. However, on at least five occasions, Boss reached over, grabbed her knee, and shook it. Johnson was so offended by this unwanted touching that she ended up sitting as close to the passenger door as possible, with her knees tilted toward the door away from Boss. Upon their arrival at the Fairmont school, Johnson saw another teacher, Mary Lundberg, in the hallway of the school. Lundberg testified that when she saw Johnson on this occasion, she looked white and physically ill. Johnson told Lundberg what had just happened.
Later in the school year, Boss wrote a note to Johnson suggesting that just the two of them attend a Chapter 1 conference in South Dakota. Johnson, wanting no part of another trip with Boss, showed the note to Lundberg and suggested that Johnson would write back and say that she and Lundberg “would love to go.” When Johnson delivered her reply note to Boss, he objected and asked “[wjho invited Mary.” In front of two male teachers, Johnson then asked Boss if he wanted just the two of them to go away for 3 days by themselves. Johnson testified that Boss just hung his head and reluctantly said no.
Johnson testified that Boss’ conduct caused her to avoid him whenever possible and interfered with her responsibilities in regard to the Chapter 1 program. Johnson answered affirmatively when asked whether she considered Boss’ ongoing approaches as offensive and whether she was being provided a hostile working environment.
*688In addition, four teachers (two male, two female) that testified on behalf of Boss shared the opinion that touching the leg of a staff member of the opposite sex in a work setting was either offensive or inappropriate.
One other male teacher testifying on behalf of Boss related an incident wherein Boss hugged a female student in a manner that the teacher considered unprofessional.
Suffice it to say that there was more than sufficient basis to conclude that the board could fairly and reasonably find the facts as it did. It is not for this court to determine credibility of witnesses, retry issues of fact, or decide whether this court would have reached the same conclusion as the board.
As the majority notes, unprofessional conduct must be directly related to Boss’ fitness to act in his professional capacity. Unprofessional conduct must also be conduct palpably below the standards of accepted professional behavior. See Scott v. State ex rel. Board of Nursing, 196 Neb. 681, 244 N.W.2d 683 (1976).
This is not a sexual harassment case, and the dispositive issue is not whether Boss violated the district’s sexual harassment policy. The dispositive issue is whether Boss’ actions were unprofessional, and, if so, did such actions interfere with Boss’ ability to discharge his duties as superintendent of schools?
Boss’ conduct toward Johnson was palpably below that which is expected from a school district superintendent and, without question, directly implicated Boss’ fitness to act in his professional capacity. Boss, as superintendent, is charged with administering and enforcing the sexual harassment policy in the school district. In spite of this, Johnson’s testimony revealed that Boss’ ongoing actions and comments were offensive and provided a hostile working environment for at least one female staff member.
There was evidence, sufficient as a matter of law, to support the board’s conclusion that Boss’ actions toward Johnson and certain female students constituted unprofessional conduct directly related to the administration of his duties as superintendent of schools. Under the correct standard of review in this matter, a judge could not, were this matter tried to a jury, direct a verdict for Boss. Stephens v. Board of Ed. of Sch. Dist. No. 5, *689230 Neb. 38, 429 N.W.2d 722 (1988); Eshom v. Board of Ed. of Sch. Dist. No. 54, 219 Neb. 467, 364 N.W.2d 7 (1985).
I would reverse the judgment of the Court of Appeals and remand the matter with directions to affirm the judgment of the district court.
Connolly, J., joins in this dissent.