Gary Teachers Union, Local No. 4 v. School City of Gary

332 N.E.2d 256, 165 Ind. App. 314, 1975 Ind. App. LEXIS 1252

• Court: Indiana Court of Appeals
• Decided: August 12, 1975
• Docket: No. 3-973A126
• Status: Published

Opinions

Garrard, J.

This action was commenced to contest the discharge of appellant Tankersley from his teaching position in the Gary school system and to secure construction of a provision in the collective bargaining agreement between the school and the appellant union.

The trial court determined that the contract provision was void as contrary to law and that the teacher had been properly discharged. We affirm.

We first consider the provision contained in the collective bargaining agreement.¹ It provides under Article X:

“A. Any teacher who shall serve under contract as a teacher in the School City of Gary for three (3) or more successive years and who shall at any time thereafter enter into a teachers contract for further service with the School City of Gary shall acquire Gary Tenure and shall have his contract renewed automatically without further formal evaluation.

B. Cancellation of such School City of Gary indefinite contract may be made only for such cause as prescribed under existing state statutes concerning dismissal of teachers who have acquired tenure as defined in Indiana statutes.”

It is not disputed that at the time of his discharge, Tankersley had taught in the school system for three successive years and had entered into contract for the fourth year.

Tankersley and the union contend that Article X thus requires not only that his discharge must be predicated on one of the grounds enumerated in the Teacher Tenure Act (IC 1971, 20-6-12) but that the discharge can be effected only by strict adherence to the procedures prescribed for the discharge of tenure teachers.

The trial court did not reach the question of the proper interpretation of the second clause, but instead determined that the provision for “Gary tenure” was contrary to law and unenforceable.²

The Teacher Tenure Act provides that teachers who have served under contract as a teacher in a school city or school town corporation for five or more successive years and then enter into a contract for further service with such corporation shall thereupon become “permanent” teachers with indefinite contracts to remain in force until the teacher reaches 66 years of age. IC 1971, 20-6-12-1. Teachers acquiring the status of permanent teacher may be terminated for only the causes and upon application of the procedures prescribed by the act. IC 1971, 20-6-12-2.

It has been previously held that a. teacher meeting these requirements becomes a permanent teacher subject to the act even though he and the school corporation attempted to contract for a definite term. School City of Lafayette v. Highley (1938), 213 Ind. 369, 12 N.E.2d 927.

The question here presented is the obverse of the situation in Highley. Assuming the teacher and school cannot avoid tenure status for a teacher meeting the statutory qualifications, can they agree to provide tenure to one who has not met the statutory requirements ?

While the language of Article X refers merely to the grounds for discharge established under the Tenure Act, its purpose and impact are much broader.³ It purports to govern not only discharges during the period the teacher is teaching under his yearly contract, but also, “renewals” of his contract for the succeeding year. In other words, by imposing the requirement of cause for termination, it eliminates the simple device of non-renewal at the end of the term as a means of replacing a teacher. Once this requirement of cause is imposed upon the relationship, constitutional due process requires notice and hearing. Board of Regents v. Roth (1972), 408 U.S. 564; Perry v. Sindermann (1972), 408 U.S. 593.

Thus, to determine whether such action is within the authority granted by the legislature, it is necessary to review both the nature of the Tenure Act and subsequent enactments dealing with téacher employment.

In Highley the Supreme Court declared the purpose of the Tenure Act to be:

“. . . to protect the educational interest of the state by the establishment of a uniform system of permanent contracts. It is not its purpose to foster the interests of or to create special privileges to any teacher or class of teachers. The policy of the law is to establish a uniform .tenure system for all the schools of the state, and must be construed liberally with that aim and end in view.” 213 Ind. 376, 377. (Our emphasis.)

Thus, the court concluded:

“A tenure teacher, serving under an indefinite contract, can become such teacher by one method only, and that is by teaching five years under contract, and by thereafter entering into another contract for further service with the same school corporation.” 213 Ind. 377. (Our emphasis.)

In the present context, it is well to recall the further statement of the legislative justification for the act and the manner in which it is to be construed, as voiced by the court in Miller v. Barton School Twp. (1939), 215 Ind. 510, 20 N.E.2d 967, that the Tenure Act is based upon the public policy of protecting the educational interests of the state and it is therefore the duty of the court to adopt that construction of the act best calculated to protect the public right as against the individual right.

At this juncture there can be little doubt of the service to the public interest in education which the security of the tenure system provides in attracting and keeping capable teachers in the field.

There, however, appears to be equally little doubt that the public interest in capable teachers providing quality education also demands some reasonable period of time within which a school system may seek to improve the quality of its teachers, even though those replaced may meet minimal standards of competence and behavior. In the Tenure Act the legislature established that period as the first five years of consecutive service. That another or shorter period of time might also be reasonable, or even more desirable, is a matter for the legislature rather than this court.

In addition, a policy of uniformity appears meritorious not merely to deter devisiveness but because it creates an assurance to those entering and engaging in the teaching profession that these assurances will not be altered by the whim of the community if they find it necessary or desirable to move from one community to another.

Having thus established the purpose of the act, it only remains to determine whether that purpose has been altered by subsequent legislation.

The only relevant statute we find is the General School Powers Act of 1965, IC 1971, 20-5-2. However, while that act refers to the general powers of a school corporation to employ, contract for and discharge teachers, such power is specifically qualified.

“The compensation, terms of employment and discharge of teachers shall, however, be subject to and governed by the laws relating to employment, contracting, compensation and discharge of teachers; . . . .” IC 1971, 20-5-2-2(7).

It is apparent from this provision that in enacting the school powers act, the legislature did not intend to alter the laws relating to the employment and discharge of teachers.⁴

We therefore hold that the Teacher Tenure Act controls and prohibits according tenure status to teachers before the statutory requirements are met.

We next consider whether the court correctly sustained the discharge of Tankersley under his individual contract.

That contract provides in part:

“It is agreed by the parties hereto that in case the said teacher should, after opportunity for hearing with benefit of legal counsel, be held by said employer to be guilty of incompetency, immortality, insubordination or other offence recognized as just cause according to law for cancellation of contract, such teacher, subject to proper appeal, shall be deemed to be dismissed . . . subject, however, to the provisions of law concerning the employment and dismissal of teachers which are in force and effect.”

Tankersley contends that his discharge was improper under this provision because he was not given adequate notice of the charges against him; he was not accorded his right to a prior hearing; he was improperly prejudiced by the introduction of inadmissible evidence before the school board, and, in any event, no proper cause for discharge was established.

The procedural facts disclose that Tankersley had been employed as a teacher for three successive years at the end of the 1971-1972 school year. In August 1971, a criminal affidavit charging Tankersley with theft, assault and battery and fleeing a police officer was filed in the City Court of West Lafayette, Indiana. In September, a representative of the school wrote Tankersley advising him that the school had been notified of his alleged involvement in the West Lafayette matter and unless he resigned, he would be suspended pending termination proceedings. Tankersley promptly replied asserting that he was not guilty of the charges and therefore could not resign.

He continued to teach and on February 14, 1972, the criminal charge of theft was dismissed and he entered pleas of guilty to the counts for assault and battery and fleeing a police officer.

On May 18,1972, he was allegedly involved in a disturbance in the City of Hobart. He was arrested and charged with disorderly conduct, resisting arrest by flight and illegal possession of fireworks.

On June 9, the school sent him the following letter:

“The School City of Gary has received the results of your trial in West Lafayette, Indiana.

I am recommending to the Board of School Trustees the termination of your employment, effective the end of the day, June 30,1972.

Be advised that you have access to the grievance procedure concerning the decision.”

(Article IV of the collective bargaining agreement defines a grievance as an alleged violation of the agreement, board and personnel policy or established working conditions or practices. The procedure to handle grievances is established in four stages. Stage 1 provides for informal adjustment with the principal. Stage 2 is a formal presentation with the superintendent. Stage 3 is an arbitration proceeding which is optional with the union. Stage 4 is a hearing with the school board. Where the grievance arises from action of authority other than a principal, the grievance may be initiated at Stage 2.)

On June 14, the union requested a second stage grievance meeting to discuss Tankersley’s termination. That meeting was held June 28 and was attended by Tankersley and his attorney. The school denied the grievance and advised Tankersley by mail that he was being terminated as of June 30. (It is here relevant to note that Tankersley’s 1971-72 contract expired in June and the contract for the 1972-73 year was for a term commencing September 25,1972.)

On July 7, Tankersley’s attorney wrote to the school board requesting a statement of formal charges and the opportunity for a hearing. The school promptly replied, setting a hearing for August 29 and advising that the West Lafayette incident of August 21, 1971 and “an unacceptable pattern of conduct” continued by the incident on May 18, 1972, occurring in Hobart, Indiana, at or about 220 North Ohio Street, constituted the charges.

For a reason not disclosed by the record, this hearing was not held until September 14. At that time Tankersley was present with counsel and was afforded the opportunity to confront and cross examine the witnesses against him, the opportunity to present evidence in his own behalf, and the privilege to refrain from testifying.

He was thereafter advised in writing that the school board, “after careful consideration of the oral testimony, cross examination, and documents submitted at the Board hearing” determined that the charges had been substantiated, that grounds for termination existed, and that he was therefore dismissed.

The notice to which Tankersley was entitled is that required by due process of law attendant to his contractual right to a hearing to establish cause. He was entitled to know the nature of the accusation so that he might intelligently prepare to meet it. However, in the absence of specific statute or other formal statement of procedure, no particular form or specific content is required. It is sufficient if the party is fairly apprised of the claim against him. Dohany v. Rogers (1930), 281 U.S. 362; Cf. Fuentes v. Shevin (1972), 407 U.S. 67.

Here the series of communications from the school culminating in the reply to the July 7 letter from Tankersley’s attorney sufficiently advised Tankersley of the matters being urged against him. Indeed, counsel does not really contend he was insufficiently advised. The contention is, rather, that the matters charged should not constitute a basis for the action taken.

We recognize that due process requires that the hearing be had before the deprivation at issue takes place. Fuentes, supra; Bell v. Burson (1971), 402 U.S. 535.

Counsel contends that this requirement was not met either because the final notice of hearing and charges came after the Stage 2 grievance proceeding and therefore Tankersley did not receive prior notice; or because the Stage 2 grievance meeting constituted a prior determination that rendered the September hearing a sham.

We recognize that the grievance procedure outlined in the collective bargaining agreement is mechanically somewhat at odds with the prior hearing procedures required under the individual contract or the teacher’s tenure act.

Under the facts in this case we need not dwell upon the resolution Of that conflict. The grievance procedure clearly preserves the teacher’s right to proceed through the Stage 4 meeting with the school board. If it was error to hold a Step 2 grievance meeting, the error was invited by Tankersley’s agent for collective bargaining by virtue of the grievance provisions and the request from the union for the Step 2 meeting, and Tankersley did attend with counsel and participate. At the commencement of the September hearing, Tankersley and the school board expressly agreed that the hearing to be held would constitute both the Stage 4 hearing and the hearing referred to in Tankersley’s individual contract. Furthermore, the course of the grievance proceedings was conducted during a period of time before the contract was to go into effect. There is nothing in the record to intimate that the September hearing was other than a fair hearing on the merits of the charges. Accordingly, we cannot say that the trial court erred in determining that Tankersley was in fact afforded the hearing required by his contract and due process. Doran v. Board of Ed. (1972), 152 Ind. App. 250, 285 N.E.2d 825.

At the hearing, the police officers involved in the arrests in West Lafayette and Hobart appeared and testified regarding Tankersley’s conduct on those occasions. This evidence was objected to on the basis that the conviction record was the best evidence regarding the West Lafayette incident, that the charges in Hobart had not been disposed of at the time of the hearing, and that the reference to the Hobart matter was so vague as to fail to satisfy the due process requirement of notice.

It must be remembered that proceedings for the discipline or discharge of individuals generally have a twofold purpose. First, it is the function of the hearing body to determine the truth or falsity of the alleged misconduct. Secondly, but of equal importance where the penalty to be imposed is discretionary, it is the function of the hearing body to determine the precise penalty to be imposed or whether the penalty sought to be imposed is warranted.

With regard to this second purpose, facts and circumstances surrounding the alleged misconduct are relevant to establish mitigation or aggravation attending the complained of activity. Accordingly, it was relevant to the hearing to permit the eyewitness testimony of the officers involved.

Tankersley’s other objection to the evidence concerned the introduction of the disposition record of the charges in West Lafayette. Counsel objected that the records were not properly authenticated since they were certified by the judge rather than the city clerk. The objection is not well taken. IC 1971, 34-1-17-4 provides that copies of the proceedings and judgments of any justice of the peace in Indiana shall be admissible when certified to by the justice. In Roberts v. State (1921), 190 Ind. 232, 130 N.E. 125, this was held to be the proper method of authenticating city court records.

Tankersley’s principal contention on the discharge itself is that he was merely convicted of a misdemeanor, and at least without prior written policy to the effect that conviction of a misdemeanor was cause for discharge, sufficient cause was not established.

The contract specified as grounds for cancellation “incompetency, immorality, insubordination or other offense recognized as just cause according to law for cancellation.”

In construing the language of the tenure act which also refers to “other good and just cause”, our Supreme Court in McQuaid v. State (1937), 211 Ind. 595, 6 N.E.2d 547, expressly held that other good and just cause was not limited by the enumerated grounds but instead permitted discharge in the absence of one of the other grounds so long as there was just and good cause and the discharge was not for political or personal reasons. See, also Stiver v. State (1937), 211 Ind. 370, 1 N.E.2d 592.

It cannot be said that a teacher’s conduct outside the classroom bears no reasonable relation to his qualifications for employment. As observed by the United States Supreme Court in Adler v. Bd. of Education (1952), 342 U.S. 485, 493:

“A teacher works in a sensitive area in a schoolroom. There he shapes the attitude of young minds toward the society in which they live. In this, the state has a vital concern. It must preserve the integrity of the schools. That the school authorities have the right and the duty to screen the officials, teachers and employees as to their fitness to maintain the integrity of the schools as a part of ordered society, cannot be doubted. One’s associates, past and present, as well as one’s conduct, may properly be considered in determining fitness and loyalty.”

Here the school board heard the evidence of a West Lafayette police officer that he observed Tankersley go to a bicycle rack in front of an apartment house and attempt to cut the chain lock on a bicycle. When he was unable to do so, he went to another bicycle rack and returned with a girl’s bicycle which he placed in a red VW bus. When the officer went up to the bus and identified himself as a police officer, Tankersley started the engine and “cut into” the police officer and then drove off. The officer called for assistance and Tankersley was subsequently apprehended. The officer from Hobart testified that he observed Tankersley and two others walking up to a house at 220 N. Ohio Street at about 12:15 a.m. When one of the persons then lit what appeared to be a fuse, the officer and his partner jumped out of their car, identified themselves as police officers, and told the three subjects to “hold it”. When this happened, they “dropped what they had lit and took off running”. The officers caught them when they jumped into a red VW bus and attempted to drive away.

Tankersley offered no denial or explanation of the conduct described in this testimony.

■The trial court correctly determined that there was substantial evidence in support of the Board’s determination.

Tankersley also urges that he has been denied equal protection of the law. The only support for this allegation urged in his brief is the bare assertion that other Gary schoolteachers have been charged with misdemeanors and have not been discharged from employment. That is insufficient to present the matter for appellate review. Indiana Rules of Procedure, Appellate Rule 8.3(A) (7). Similarly, the remaining assignments in the motion to correct errors have been waived since they were not urged in the argument portion of appellant’s brief.

The judgment is therefore affirmed.

Hoffman, J., concurs; Staton, P.J., dissents with opinion.

1 . The agreement is not a product of the collective bargaining act of 1973, IC 1971, 20-7.5-1. Its authorization arises under Gary Teachers Union v. School City of Gary (1972), 152 Ipd, App. 591, 284 N.E.2d 108.

2 . Article XXIX of the agreement contains a savings clause providing for non-enforcement of any provision determined to be contrary to law.

3 . If the provision dealt merely with grounds in practice, it would be superfluous except to establish a separate violation of the bargaining agreement since the uniform terms of a teacher’s individual contract specify the same grounds in nearly identical language to the Tenure Act.

4 . While the collective bargaining act of 1973, IC 1971, 20-7.5-1, is not applicable to these proceedings, it too manifests this legislative intent by excluding employment and discharge from subjects for bargaining and providing instead that school employers shall have the responsibility and authority to hire and retain and to suspend and discharge employees in accordance with applicable law. IC 1971, 20-7.5-1-6 (b).