Seymour v. Western Dakota Vocational Technical Institute

HENDERSON, Justice

(specially concurring).

In reviewing the facts of this case, it becomes quite evident that Seymour was not only a teacher, he was also a department head and farm supervisor entrusted with the duty and responsibility of spending money on behalf of his employer, the Institute. Therefore, he was wearing two hats. !

Whatever hat he was wearing, he was acting; as a public employee and he plainly violated his contract in that he was involved in a classic case of self-dealing.

In-reviewing the circuit court’s decision, I am convinced that the circuit court recognized ¡the two hats which Seymour could wear theoretically and the third one which he tried to wear, whereby he plainly violated his; contract and committed a flagrant neglect of duty. The Board of the Institute dismissed Seymour for plain violation of contract and flagrant neglect of duty. Thus, the Board and the circuit court has an absolute meeting of the minds.

In my opinion, both the Board and the circuit’ court judge have sustainable positions in law. I am not so taken up with the majority opinion’s “ethics theory” as by the rationale of the decisions of the Board and the circuit court.

Furthermore, I ground my writing in the old concept in this Court that we must find the findings of fact to be clearly erroneous. They are not; and the conclusions of law of the trial, court are not mistakes of law; thus, under our oft-quoted rule, now more particularized in Permann v. South Dakota Dep’t of Labor, 411 N.W.2d 113 (S.D.1987), the circuit judge should not be reversed.

Lastly, I set forth the dismissal provision of the'contract:

DISMISSAL
The contracting Board upon the recommendation of the Cooperative Board may dismiss any teacher at any time for violation of contract, gross immorality, incompetence, flagrant neglect of duty, unprofessional conduct, or failure to comply with an order as issued by the Board *210through the Director and not in conflict with terms of the contract.

Seymour took advantage of his position and profiteered against our state law. SDCL 3-16-7. When he was acting as a farm manager and chairman of the Agricultural Technology Department, receiving extra compensation for these positions, he occupied a position of public trust and employment. See SDCL 3-16-1. Under SDCL 6-1-1, Seymour’s sale of alfalfa to the Institute was “null and void from the beginning.” In all of the legal premises, I would sustain the circuit court.