Hagen v. Independent School District No. 1-004

2007 OK 19, 157 P.3d 738, 26 I.E.R. Cas. (BNA) 87, 2007 Okla. LEXIS 22, 2007 WL 987156

• Court: Supreme Court of Oklahoma
• Decided: April 3, 2007
• Docket: 102,482
• Status: Published

Opinions

HARGRAVE, J.

¶ 1 This is appellant/school district's appeal from the trial judge's order reinstating career teacher Jerry Hagan.¹ Appellant's board of education terminated Hagan under 70 0.8.2001 § 6-101.22(A)(8) ² of the Teacher Due Process Act, for alleged "physical or mental abuse of a child." Hagan demanded a trial de novo in district court and sought reinstatement with full back pay and benefits as well as expungement of his personnel file, plus attorney fees and costs. After trial de novo, the trial judge ruled that school district failed to prove by a preponderance of the evidence that Hagan violated § 6-101.22(A)(3) of the Teacher Due Process Act. The trial judge ordered Hagan reinstated with back pay and awarded him attorney fees. The only question before the Court is whether the trial court's ruling is supported by competent evidence. We find that it is and affirm the trial court.

TEACHER DUE PROCESS ACT OF 1990

¶ 2 The Teacher Due Process Act of 1990, 70 0.8.2001 § 6-101.20 et. seq. provides that if a school board, after the procedure set out therein, dismisses a career teacher, it must notify the teacher of the right to petition for a trial de novo in the district court of the county where the school district is located. 70 0.$.2001 § 6-101.26(C). The Act places the burden on the district superintendent or designee to prove by a preponderance of the evidence that dismissal is warranted. Section 6-101.27(D).

T3 The Act provides that trial judge shall give no deference to the school board's findings, but instead shall determine de novo all issues of fact and law necessary for the full adjudication of the dispute at the trial. Id. Unless otherwise specifically provided, the law generally applicable to civil suits filed in district court shall apply to the proceedings for trial de novo under the section and the trial shall proceed as a non-jury trial before the court. Id.

I 4 At the conclusion of the trial, the judge must prepare written findings of fact and conclusions of law and enter judgment directing either: 1) that the local board of education reinstate the career teacher with full employment status and benefits; or 2) that the decision of the local board of education for the dismissal of the career teacher be sustained. 70 0.8.2001 § 6-101.27(D).

15 "De novo review" in the trial court means that there must be a complete examination of all issues, both of fact and law, and the cause stands as if it has never been resolved. The burden of proof does not shift, but rests on the same party as in the lower tribunal. Bankoff v. Board of Adjustment, 1994 OK 58, 875 P.2d 1138, 1148-1144. The district court's seope of review is unlimited. Abel v. Oklahoma Real Estate Commission, 453 P.2d 1007, 1009.

T6 If no appeal is taken, the decision of the district court is final and binding upon the teacher and the board of education. A losing party can appeal the decision in the manner provided by law for the appeal of civil cases from the district court. 70 0.8. § 6-101.27(F).

STANDARD OF REVIEW ON APPEAL

T7 In a non-jury trial the trial judge acts as the trier of fact and those findings are entitled to the same weight and consideration that would be given to a jury's verdict. Soldan v. Stone Video, 1999 OK 66 ¶ 6, 988 P.2d 1268, 1269. In an action at law the findings of fact by the trial court have the same force and effect as the verdict of a jury, and those findings will not be disturbed upon appeal where there is any evidence reasonably tending to support the findings. Robert L. Wheeler, Inc. v. Scott, 1991 OK 95, 818 P.2d 475, 480. Thus, on appeal, we must accept the findings of fact made by the trier of fact if those findings are supported by competent evidence.

T8 Likewise, the credibility of witnesses and the effect and weight to be given to their testimony are questions of fact to be determined by the trier of fact, whether court or jury, and are not questions of law for the Supreme Court on appeal. Robert L. Wheeler, Inc. v. Scott, 1991 OK 95, 818 P.2d 475, 480; Loftis v. Collins, 1966 OK 94, 415 P.2d 927. See also, Andrews v. Independent Sch. Dist. No. 57, 2000 OK CIV APP 103, 12 P.3d 491 (trial de novo sought by dismissed teacher is not a review of the administrative procedure, and therefore the trial court's findings of fact are treated as if it were a law action tried to the court and given great deference).

T9 The teacher in this case was dismissed for violation of 70 O0.S8.2001 § 6-101.22(A)(3):

A. Subject to the provisions of the Teacher Due Process Act of 1990, a career teacher may be dismissed or not re-employed for:

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"Mental or physical abuse to a child" is not defined in the Act.

110 Jerry Hagan was a special education teacher at Watts Public Schools. KH. was a sixth-grade special education student at Watts School and was a pupil of Hagan's. An incident occurred at the school on October 19, 2004 that resulted in Hagan slapping K.H. on the cheek twice. The findings made by the trial judge in the order of reinstatement were:

-Jerry Hagan was a career teacher who had been employed for ten years by the Watts School District and had good evaluations from the administration from 1998 until October 19, 2004. His record was otherwise unremarkable.

-School District was alleging that Hagen committed an act of physical and/or mental abuse of a child pursuant to 70 O.S. § 6-101.22(8) which provides that a career teacher may be dismissed or not re-employed for acts of physical or mental abuse of a child.

-that abuse is harm or threatened harm to a child's health, safety or welfare by a person responsible for same. 10 O.S8. § 7102(B)(1). However, a teacher may use ordinary force as discipline, including, but not limited to, switching, spanking or paddling. 21 0.8. § 844.

-that on October 19, 2004 Hagan slapped KH. two times after KH. left the classroom without permission. There was a concern that K.H. may have left the school grounds as he had done in the past.

-Gerrie Denton, a teacher in a neighboring classroom, testified that she observed no physical injury and that K.H. often was a discipline problem. She testified that KH. had problems with other students, had a very quick temper and could be very explosive.

-The elementary school secretary, Janice Noblin, testified that the two slaps were not very hard and that there was no physical injury. She also testified that K.H. had presented discipline problems, that KH. was often a disciplinary problem for the school and was "getting out of control."

3. Mental or physical abuse to a child;

-The high school principal Martin Bradford testified that K.H. had a very short temper, would often get angry over small things and would clench his fists as if he were going to strike you.

-K.H.'s brother, who is KH.'s guardian, testified that he was fully apprised of the facts and circumstances and had discussed the event with K.H. The brother believed this to be an isolated event and he bore Hagan no grudge. He felt that Hagan should not be fired and would be satisfied if Hagan were K.H.'s teacher again.

-K.H.'s grandmother and caretaker testified that she was fully apprised of ail of the events and that she had fully discussed the matter with KH. She did not want Hagan terminated and would be satisfied if Hagan taught KH. again. The grandmother testified that she has also slapped K.H. on occasion "to stop him from throwing fits."

-Doctor Jimmie Taylor, M.D., testified that he has known Hagan for 18 years and that this event was out of character for Hagan. He stated that he had a full history from both Hagan and KH. and that Hagan was being counseled for this event. He testified that in his opinion the event was isolated and that, with the intervention and Hagan's remorseful attitude, would be unlikely ever to be repeated.

-Jerry Hagan testified that his intention was not to harm but to control K.H. He testified that he was remorseful, that the event would not be repeated and that his counseling by Dr. Taylor and others was working.

-Roy Teague, a friend and co-worker, testified that he has known Hagan for approximately ten years through the church, as a teacher and as a coach at school. He testified that Hagan has a reputation for honesty, truthfulness and is a peaceful man who loves children.

¶ 11 The trial judge also took into account his own observation of K.H. in the courtroom throughout the trial. Specifically, he observation that when KH. was in the courtroom looking at the court reporter's machine, he was very near to Hagan and exhibited no fear or concerns and was totally at ease while in close proximity to Hagan. The trial judge likewise took into account that Hagan immediately reported the event, did not deny that he had slapped KH., was honest and straightforward in reporting the events, expressed remorse and apologized to all concerned. He noted that an otherwise unblemished record supported Hagan. Order, T1 18, 19.

{12 The trial judge concluded that given all of the facts and cireumstances, including Hagan's testimony that he was not trying to harm the child, but rather trying to get the child to stop a fit, and including the superintendent's admission that even after a complete investigation she was still undecided whether to dismiss Hagan, the school district had not met its burden of proof.

T13 We have reviewed the evidence and we find that the trial judge's ruling was supported by competent evidence. The evidence was conflicting and the trial judge, who was able to observe the witnesses and weigh the evidence, accorded more weight to the evidence favorable to Hagan. Whether this Court or any other court might have reached a different conclusion based on the same evidence is immaterial.

T 14 It is not necessary to recite the evidence in great detail. Mr. Hagan testified that he had accused K.H. of typing the word "jackass" on his computer, which KH. denied. Hagan testified that he was working with some of the other kids after this happened and one of the kids told him that K.H. had left the classroom. KH. was permitted to leave the classroom if he asked permission to do so, but he did not ask permission. Hagan testified that he went to look for K.H., stating, "The first place I looked was down the street because he's left the school grounds before, then I went toward the office and he was already there in the office." Ha-gan testified that he did not intend to injure KH. when he slapped him, but that his intention was to try to get K.H.'s attention and find out what was wrong. Hagan testified that he later went to K.H.'s home and apologized to K. H., his grandmother and brother.

I 15 Special Education teacher Gerrie Den-ton testified that K.H. has specific disabilities and social interaction problems, stating

"Thle's on medication and he has problems getting along with others, understanding how other kids-he gets mad very easily." She testified that factors taken into account when dealing with K.H. included trying to keep him calm when he is upset and letting him sit by himself for a while or letting him go talk to the principal. Denton and Mr. Hagan had a classroom in the same building with a partition between the rooms. She heard a commotion in Mr. Hagan's classroom and she heard the door slam and heard Mr. Singlet-erry come in and she assumed it was to watch Mr. Hagan's class. She testified: "I knew that K.H. had gone out the door when the door slammed." Denton did not see the altercation, but testified that Mr. Hagan said that KH. got in his face and started mouthing him and that he slapped him twice.

116 Janice Noblin, Watts Public Schools elementary school secretary, testified that K.H. came through the door with Mr. Hagan following him. KH. was mad and had headed for the office; Hagan was apparently trying to stop him. She testified that KH. had started toward the office and Mr. Hagan was behind him and that both of them were very upset. She testified that "as they got through the door they had a verbal ... well there was language used by K.H. toward Mr. Hagan and Mr. Hagan wanted me to call the grandmother; he needed some help with KH." She testified that Hagan physically got hold of KH. and took him into the office lounge/workroom and that he physically put KH. down in a chair. She testified, "KH. was really getting kind of out of control." When asked to describe how she knew that KH. was upset when he came into the office, she testified that his eyes were twitching, that he was backing up toward the outer wall in the hallway and that Mr. Hagan was right behind him every step. She said that they turned and came back towards her office and that was when Mr. Hagan slapped KH., testifying, "He slapped KH. on his right cheek, just the onee, maybe twice, but it wasn't really hard."

17 The testimony of K.H.'s grandmother and brother is as recited in the trial judge's order. They both bore Hagan no ill-will and would be comfortable having Hagan teach KH. again. The grandmother, who is KH.'s caregiver, testified that she has had occasion to slap KH. and that she felt it was appropriate.³

118 School district argues that the evidence shows that Hagan began pushing KH. through the front doors of the elementary building, that he was yelling at KH. and using his body to push K.H. and pin him in front of the secretary's window, at which time he slapped K.H. twice on his left cheek, leaving it reddened. School district argues that the trial court's rulings are clearly erroneous, contrary to the weight of the evidence and erroneous as a matter of law.

119 A teacher has the same rights as a parent or guardian to control and discipline a child attending a public school, according to local policies. 70 O.8. Supp.2006 § 24-100.4(A). The trial judge took into account that the law provides that a teacher may use ordinary force as discipline, including but not limited to, switching, spanking or paddling. 21 O.S. § 844. What constitutes ordinary foree would be a jury question. Here, the trial judge was performing the jury's fact finding function and, in considering all of the evidence, ruled that the school district had not met its burden to show that dismissal was warranted on the statutory ground of physical or mental abuse of a child.

T20 School district argues that the trial court's ruling wrongly required them to prove a specific intent by the teacher to harm the child. The trial court, however, merely determined that school district failed to prove that the teacher's actions constituted "physical or mental abuse of a child" within the meaning of the Teacher Protection Act. The legislature could have, but did not, define "mental or physical abuse of a child" in the Act. The statute uses the permissive "may" with regard to dismissal, which implies that even if the school board finds physical or mental abuse of a child, it may or may not dismiss the teacher, at its discretion. The legislature has, however, in giving a dismissed teacher the right to a trial de novo, placed the final discretion with the trial judge, based on the evidence.

{21 Having reviewed the evidence in light of our review standard, we find that the trial judge's decision was based on competent evidence. The trial judge made detailed findings, recapping the evidence before him. The trial judge heard testimony from at least nine witnesses and reviewed the evidentiary materials. The trial judge gave more weight and credibility to the testimony of Hagan and his witnesses. Giving weight and credibility to the evidence before him is one of the trial judge's duties when sitting as the trier of fact. Under these cireumstances, this Court, in reviewing the decision of the trial judge, must accept those findings just as we would accept the findings of a jury. The trial judge's ruling was supported by competent evidence and must therefore be affirmed.

ATTORNEY FEES

122 The trial judge awarded Hagan his attorney fees. Title 70 0.$.2001 § 6-101.27(D) provides that the trial court may enter an order awarding the prevailing party attorneys fees and costs. School District argues that to award attorney fees was abuse of discretion on the part of the trial judge because Hagan was not impaired financially after his dismissal since he was paid during the pendency of the trial. School District refers to this as a "paid vacation" and a windfall.

{23 The Teacher Due Process Act provides that the teacher shall continue to be paid until the trial de novo is completed. 70 0.8. § 6-101.26(C). The very next section allows for the award of attorney fees to the prevailing party. This indicates legislative intent that a teacher can be awarded both. Hence, we cannot say that the trial court abused his discretion by allowing it.

AFFIRMED.

1 24 CONCUR: WINCHESTER, C.J., EDMONDSON, V.C.J., LAVENDER, HARGRAVE, OPALA, WATT, COLBERT, JJ. 125 DISSENT: KAUGER, TAYLOR (BY SEPARATE WRITING), JJ.

1 . Plaintiff's brief informs us that the plaintiff's name is spelled Hagan instead of Hagen. A career teacher means "a teacher who has completed three or more consecutive complete school years in such capacity in one school district under a written teaching contract." 70 ©.$.2001 § 6-101.3(4).

2 . The current version of the statute is codified at 70 O.S. Supp.2006 § 10-101.22.

3 . K.H.'s grandmother testified:

Q: Have you ever had occasion to slap KH. yourself?

A. "Yes, I have."

Q: Did you feel at the time, did you feel that it was appropriate?

A: Yes.

Q: Why?

A: "Because he was having one of his little temper tantrums, as I call them-and screaming and hollering. That's the only way I could get him to hush." Tr. p. 111.