dissenting.
52 I agree wholeheartedly with the majority's conclusion that the reasonableness of the Assistant Superintendent's order for Rit-zert to come back to work was a matter of ultimate fact, as to which the hearing officer's finding was not entitled to deference. For that very reason, however, I would uphold the Board's finding of insubordination and its order of dismissal.
T53 Although the majority's holding is couched as a failure of the Board to justify its finding of ultimate fact in terms of the hearing officer's evidentiary findings, I believe this formulation of the problem simply serves to obscure the legal conclusion upon which that holding actually rests. The Board's resolution did not contradict or run counter to any relevant evidentiary finding by the hearing officer. In fact, there has never been the slightest dispute about the underlying historical facts. Notwithstanding 'its expansive discussion of procedure, and the respective roles of the Board and hearing officer, the majority conelusorily announces, in the final paragraph of its analysis and without citation to authority or explanation of its reasoning, the interpretation of law upon which its rationale actually rests-that permitting a teacher's dismissal for failing to return to work as ordered, after being placed on paid administrative leave and told that the district would seek her dismissal, "would nullify the statutory grounds for dismissal designed to protect teachers from arbitrary and capricious termination." Maj. op. 150. Because I could not more emphatically disagree with this proposition, I respectfully dissent.
T 54 Surely there can be no dispute that by refusing to teach as ordered, in the district for which she was being paid to teach, Rit-zert was in flagrant breach of the central condition of her employment. The hearing officer, nevertheless, found it unreasonable for the District to order her to fulfill her contractual obligation, for the reason that District officials hoped she would refuse and provide them with grounds for her dismissal. This finding-that the order for Ritzert to return to teaching was a "pretext"-is the "evidentiary finding" as to which the majority considers the Board's dismissal order to be in conflict, or "contrary." Largely buried in the folds of its opinion, however, is its conclusory answer to the critical question: whether the District's motive for demanding that Ritzert comply with her contract was at all relevant to the reasonableness of its con-cededly contractually authorized demand.
« 55 Although use of the term "pretext" to describe the District's actions appears questionable, there seems to be no dispute that upon learning Ritzert had entered into two conflicting teaching contracts, both of which she could not possibly fulfill, the District deliberately foreed her to choose which she would keep and which she would breach. In the absence of an anticipatory breach by the District, impossibility, or frustration of com*978pliance for which Ritzert bore no fault, or some other contractual basis for relieving her of her duty to comply, I think it clear that any hope the District may have harbored that she would herself provide the grounds for her dismissal was simply beside the point. There has never been a finding, and Ritzert herself does not assert, that she had a right to teach that was violated by putting her on fully paid administrative leave, or that the District violated the terms of her employment by notifying her of its intent to pursue the very dismissal procedure contemplated by statute. Should the majority intend in any way that the District repudiated the employment contract or otherwise made it impossible or unnecessary for Ritzert to fulfill her contractual obligations, it certainly does not indicate as much or provide the least support for such a determination.
156 Quite the contrary, the majority purports to distinguish the legality, or "legitimacy," maj. op. 149, of the Assistant Superintendent's order for Ritzert to return to teaching from its "reasonableness," faulting the Board for addressing only the former and not the latter. The necessary implication of this distinction is that despite being justified in demanding that Ritzert return to teaching as a contractual matter, the District's demand that she comply with her contractually enforceable obligation may nevertheless have been unreasonable. In fact, in its final paragraph (notwithstanding its ostensible reliance on a failure of process), the majority effectively declares it to be unreasonable to require a teacher to return to work after putting her on paid leave and advising her that the district will seek her dismissal, without giving her sufficient time to fulfill another teaching contract, into which she entered as a hedge against the eventual loss of her dismissal challenge.
T57 This reasoning strikes me as leaving the majority in the uncomfortable, if not positively fantastical, position of upholding Ritzert's right to retain her job with one district, despite not only refusing a contractually justified order to teach for that district but, in fact, electing to teach for another district in its place. I consider this position so facially flawed and contrary to fundamental principles of contract law as to require no further demonstration of error. I consider it patent that to merely articulate the majority's rationale is, at one and the same time, to refute it.
1 58 I therefore respectfully dissent.
I am authorized to state that JUSTICE EID and JUSTICE MARQUEZ join in this dissent.