Duncan v. Reorganized School District No. R-1

617 S.W.2d 571, 1981 Mo. App. LEXIS 2837
CourtMissouri Court of Appeals
DecidedMay 4, 1981
DocketNo. WD 31637
StatusPublished
Cited by8 cases

This text of 617 S.W.2d 571 (Duncan v. Reorganized School District No. R-1) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Duncan v. Reorganized School District No. R-1, 617 S.W.2d 571, 1981 Mo. App. LEXIS 2837 (Mo. Ct. App. 1981).

Opinion

WASSERSTROM, Chief Judge.

Plaintiff seeks a declaratory judgment that he is entitled to continued employment as an elementary school principal by the defendant School District. The trial court sustained defendants’ motion for summary judgment and denied plaintiff’s motion for judgment on the pleadings. Plaintiff appeals. We affirm.

In February 1979, plaintiff was a certificated teacher who had been employed by the defendant District as a principal for 15 years. On February 1, 1979, the Board of Education gave notice to plaintiff that he would not be reemployed as principal for the 1979-80 school year. Plaintiff promptly, on February 2, 1979, made a request for a statement of reasons. On February 9, the [572]*572Board acknowledged the request but stated that before providing reasons, it was waiting for legal clarification with respect to its obligation to do so. On February 16, 1979, the Board, while maintaining that it was not necessary for it to give its reasons, did in fact state the reasons for not reemploying plaintiff.1

On March 23, 1979, defendant filed his petition in the Circuit Court for declaratory judgment, in which he prayed the court to declare that the Board’s attempt to terminate his contract was ineffectual and to further declare that plaintiff’s contract as elementary principal continued in full force and effect for the school year 1979-80. Shortly thereafter, the Board sent plaintiff a second notice dated April 5,1979, in which the Board again notified plaintiff that he had not been reemployed as principal. This notice, however, went on to state that plaintiff retained tenure as a teacher and that a position as a teacher was available to him for the school year 1979-80. Plaintiff took no action with respect to that part of the April 5 notice notifying him of non-reemployment as a principal, but he did submit to the Board a request for employment as a teacher, making clear at the sanie time that he still desired his administrative post as principal.

In ruling against plaintiff, the trial court held: (1) that Section 168.1012 is applicable; (2) that the February notice was valid and effective, although the case should not turn upon that point; (3) that the April 5 notice was proper; (4) that plaintiff had not made any request for statement of reasons or any hearing after receipt of the April notice; and (5) that the demotion from principal to teacher had therefore become validly effective.

Plaintiff’s points on this appeal can be summarized thus: (1) that the court erred in holding the February notice to have been effective; (2) that the court erred in holding the April notice to be effective; and (3) that summary judgment was improper because a question of fact remained with respect to the intention and understanding of the parties concerning the April notice. Inasmuch as we conclude that the February notice was effective to cut off plaintiff’s right to reemployment, it becomes unnecessary to consider the effect of the April notice which is the subject of points 2 and 3. Discussion here is therefore confined to the first point on appeal, which relates to the effectiveness of the February notice,

The effectiveness of the February notice depends upon the statutory provisions contained in Chapter 168. Plaintiff in his petition raised the question as to whether Sections 168.104-168.116 (the Teacher Tenure Act) applies to plaintiff’s situation or whether Section 168.101 controls. This question has been settled by Williams v. Board of Ed., Cass R-VIII Sch. Dist., 573 S.W.2d 81 (Mo.App.1978), in which this court held that a school principal in a non-metropolitan school district is not entitled to tenure qua principal, but rather that his rights as a principal are controlled by Section 168.101.3

Section 168.101.2 provides that after the original employment for certain positions which include a nonmetropolitan principal, the employment of such individual shall [573]*573continue from year to year “subject to the regulations hereinafter set forth.” Subsection 3 goes on to provide that such an employee shall be notified in writing on or before April 15 in each year concerning his reemployment and that “[fjailure on the part of a board to give the notice constitutes reemployment on the same terms and in the same staff position as those provided in the contract of the current fiscal year.” Subsection 6 further provides as follows:

“If such certificated employee has been reemployed five times within the district, the school board, if requested in writing by such certificated employee within ten days after receipt of notice of demotion or lack of reemployment on the same terms and in the same staff position shall make available in writing a statement of reasons for demotion or lack of reemployment within ten days after receipt of the request. The board shall grant such certificated employee a hearing if requested in writing by him within ten days after the receipt of statement of reasons, the hearing to be held within ten days after the request therefor, and to be open at the request of the certificated employee. The certificated employee may have counsel at the hearing, may testify and offer testimony of witnesses as well as other evidence sustaining his defense and may cross-examine adverse witnesses.

Plaintiff contends that in view of the foregoing statutory provisions and the fact that he had been employed for 15 years, he had a right to continued employment which constitutes a property right, and that right could be taken from him constitutionally only by procedural due process which was lacking in this case. This constitutional argument cannot be considered because it is raised for the first time on appeal. The law is well-settled that a constitutional argument must be raised at the earliest opportunity. Christiansen v. Fulton State Hospital, 536 S.W.2d 159 (Mo. banc 1976). Since no constitutional point is mentioned in plaintiff’s petition filed in the trial court, no such point is properly for consideration here.

Plaintiff also contends, however, that he is statutorily entitled to procedural protections which he says were not given. He further contends that if the Board did not strictly comply with the statutory procedures, then its attempt to terminate his contractual relationship was a nullity. He claims that the Board’s procedure here was faulty in that it did not give an adequate statement of reasons and also because the furnishing of those reasons did not take place until 14 days after his request, rather than within ten days as required by Section 168.101.6. Plaintiff concludes that because of this faulty procedure, the February notice was ineffective and his contract as a principal renewed automatically under the terms of Section 168.101.3.

The fatal flaw in that line of argument lies in plaintiff’s misconception that the statutory notice is effective only if a proper reason is given, followed thereafter by the holding of a proper hearing. The validity and effectiveness of the notice is not so dependent. Therefore the alleged lack of precision and delay in delivery of the February notice are immaterial here.4

In this regard, the structure of Section 168.101.6 stands in sharp contrast to that of Section 168.116.1.

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Cite This Page — Counsel Stack

Bluebook (online)
617 S.W.2d 571, 1981 Mo. App. LEXIS 2837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duncan-v-reorganized-school-district-no-r-1-moctapp-1981.