HELENA-WEST HELENA SCHOOL DISTRICT, Appellant,
v.
Ronald DAVIS, Appellee.
No. CA 92-273.
Court of Appeals of Arkansas, En Banc.
December 23, 1992.David Solomon, Helena, for appellant.
R.S. McCullough, Little Rock, for appellee.
DANIELSON, Judge.
The appellant in this case appeals from a ruling by the Phillips County Circuit Court that reversed the school board's decision to terminate a teacher, appellee Ronald Davis, pursuant to the Teacher Fair Dismissal Act, Ark.Code Ann. §§ 6-17-1501-1510 (1987). The trial court found that appellant was denied due process during the school board proceeding. We disagree and reverse the decision of the trial court.
Appellee, a nonprobationary school teacher in the Helena-West Helena School District, acted as one of several chaperones on a field trip to Hot Springs for twentyfour third and fourth graders. When two other chaperones discovered that two girls were missing from their hotel room and began to inquire up and down the hall, appellee announced that they had become alarmed in their own room and were in his room watching television. After the group returned to West Helena the next day, principal Ernest Simes was notified by the parents of one of the two girls that their daughter was reporting she had been sexually molested by appellee when the two girls were in appellee's hotel room.
Mr. Simes and several of the chaperones met with the girl's parents that same night. *874 Mr. Simes then met with appellee and told appellee of the accusations against him. On Sunday, Mr. Simes became aware that the other girl was making similar accusations. Following meetings with the parents on Monday and another meeting with appellee, appellee was suspended with pay.
Due to the pendency of the criminal charges that had been filed against appellee, the school district took no further action for several months. On January 6, 1989, the superintendent notified appellee by letter that he was recommending appellee's discharge based on sexual molestation of students during the Hot Springs field trip, and advised appellee of his rights under the Teacher Fair Dismissal Act.
Appellee requested a hearing, which was held April 6, 1989. The medical records of the two girls were introduced, along with the testimony of Mr. Simes and three others who had served as chaperones on the trip. At the beginning of the hearing, appellee acknowledged that the girls and their parents had chosen not to be present, and then requested a private hearing. At no time did appellee object to the absence of the girls or their parents, or to the fact that he would not be able to cross-examine them due to this absence. The trial court, however, ruled that appellee was denied due process because he did not have the opportunity to cross-examine these parties. Appellant argues that the trial court was clearly erroneous in finding that the school board was arbitrary and capricious in dismissing appellee.
The decision to terminate a teacher pursuant to the Teacher Fair Dismissal Act is a matter within the discretion of the school board, and the reviewing court cannot substitute its opinion for that of the school board in the absence of an abuse of that discretion. Caldwell v. Blytheville School District No. 5, 23 Ark.App. 159, 746 S.W.2d 381 (1988). In reviewing the trial court's decision, we will affirm unless the court's findings are clearly erroneous. Id. It is not the function of this court to substitute its judgment for that of the circuit court or the school board. Allen v. Texarkana Public Schools, 303 Ark. 59, 794 S.W.2d 138 (1990).
In Re Sugarloaf Mining Co., 310 Ark. 772 at 776-777, 840 S.W.2d 172 at 174 (1992), the supreme court set out the standard of review of administrative decisions:
Review of administrative decisions, both in Circuit Court and here, is limited in scope. Such decisions will be upheld if they are supported by substantial evidence and are not arbitrary, capricious, or characterized by an abuse of discretion. Administrative action may be regarded as arbitrary and capricious only when it is not supportable on any rational basis. It has been said that the appellate court's review is directed not toward the circuit court, but toward the decision of the agency....
The standard has its origin in the Administrative Procedure Act and our case law which requires that appellate review under the act be "narrowly prescribed" with "a role of limited scope"....
In Wright v. Arkansas State Plant Board, 311 Ark. 125 at 130-131, 842 S.W.2d 42 at 45 (1992), the supreme court also discussed the review of administrative decisions:
[W]hen reviewing administrative decisions, we review the entire record to determine whether there is any substantial evidence to support the administrative agency's decision, whether there is arbitrary and capricious action, or whether the action is characterized by abuse of discretion....
To determine whether a decision is supported by substantial evidence, we review the whole record to ascertain if it is supported by relevant evidence that a reasonable mind might accept as adequate to support a conclusion.... To establish an absence of substantial evidence to support the decision the appellant must demonstrate that the proof before the administrative tribunal was so nearly undisputed that fair-minded persons could not reach its conclusion.
In reaching his decision to reverse the school board's determination, the trial court relied on Casada v. Booneville *875 School District No. 65, 686 F. Supp. 730 (W.D.Ark.1988). In Casada, the court found that the teacher was denied due process where he was not given prior notice of the names of his accusers or the specific nature and factual basis for the charges and was not allowed to cross-examine the witnesses. Casada, however, is distinguishable from the case at bar because appellee was promptly notified of the identity of his accusers and the specific nature and factual basis of the charges against him. Although appellee did not have the opportunity to cross-examine the girls or their parents due to their absence, he never objected to this fact or indicated in any way that he desired to exercise his right to cross-examine these parties. Even constitutional issues may be waived if they are not raised below. See Caldwell v. Blytheville School District No. 5, 23 Ark.App. 159, 746 S.W.2d 381.
In Alcoholic Beverage Control Div. v. Bamett, 285 Ark. 189, 685 S.W.2d 511 (1985), the court cited a United States Supreme Court decision, Unemployment Commission v. Oregon, 329 U.S. 143, 67 S. Ct. 245, 91 L. Ed. 136 (1946), in explaining why it is essential to a judicial review under the Arkansas Administrative Procedures Act that issues must be raised before the administrative agency appealed from:
A reviewing court usurps the agency's function when it sets aside the administrative determination upon a ground not therefore presented and deprives the [administrative agency] of an opportunity to consider the matter, make its ruling, and state the reason for its action.
And in American Transportation Corporation v. Director, 39 Ark.App. 104 at 108, 840 S.W.2d 198 at 200 (1992), we noted that where "the party does not request the right to cross-examine the witnesses whose hearsay statements have been received in evidence, he effectively waives his right of cross-examination, and due process requirements are not violated."
Appellee's failure to raise the issue of his right to cross-examine the witnesses resulted in a waiver of that right. Considering the testimony and evidence introduced at the school board hearing, and the deference we give to administrative decisions, we find the school board's decision to terminate appellee was supported by substantial evidence and was not arbitrary or capricious. The trial court's reversal of that decision is therefore clearly erroneous and must be reversed.
Reversed.
MAYFIELD and ROGERS, JJ., concur. ROGERS, Judge.
I reluctantly concur in holding that appellee waived both the right to confront and cross-examine the witnesses. If these issues had been preserved, we might be faced with several problems that are glaring by omission in terms of the administrative procedures used by school boards. Significantly, there appears to be no procedural rules that provide for the subpoena power to compel witnesses to appear. Consequently, hearsay problems and confrontation problems are likely to occur in these proceedings. It is difficult to have adequate due process, when there is no process at all prescribed by the rules that govern such hearings.
MAYFIELD, J., concurs.