Jergeson v. Board of Trustees of School District No. 7

476 P.2d 481, 1970 Wyo. LEXIS 202

• Court: Wyoming Supreme Court
• Decided: November 6, 1970
• Docket: 3843
• Status: Published

Opinions

Mr. Justice PARKER

delivered the opinion of the court.

This is an appeal under the provisions of the Wyoming Administrative Procedure Act, §§ 9-276.19 — 9-276.33, W.S.1957 (1969 Cum.Supp.), from an order of the district court affirming the dismissal by the Board of Trustees of School District No. 7, Sheridan County, of a high school teacher, Raymond Charles Jergeson. The facts are briefly these. On March 11, 1969, the appellant who had been employed as a teacher in the Sheridan high school during the school year, 1968-1969, signed a contract for the coming year tendered to him by the school board. On May 9, 1969, the president of the board delivered personally to appellant a “Notice of Dismissal” for the reasons that:

“1. Your philosophy and practice of education is detrimental to the best interests of the high school students.

“2. Incompetency, as evidenced by the April 1, 1969 edition of the Ock-sheperida, the school newspaper of Sheridan High School, for which you are Advisor.”

The notice stated that a hearing before the board on the reasons for the dismissal would be held in Sheridan on May 28, 1969, at 7:30 p. m. The hearing was held on the stated date and the proceedings steno-graphically reported. The board on June 20, 1969, made its findings of fact, conclusions, and order, which stated its determination on various aspects of the hearing; concluded, inter alia, for reasons stated that appellant had failed to teach in a manner satisfactory to the board and had not met or attempted to meet the minimum standards of conduct and propriety for a teacher in the school; and ordered that he be dismissed from his employment, effective June 20, 1969.¹

Thereafter on July 15, 1969, appellant filed a petition for judicial review, asking the court to reverse the decision of the board concerning his dismissal and to reinstate him as a teacher for the school year 1969-1970. On August 6, 1969, at appellant’s instance, the board having filed nothing, the clerk of the district court issued an "Entry of Default,” which was later set aside. The petition for review came on for hearing, and the court issued an order affirming the board’s action, from which this appeal has been taken.

Appellant challenges the court’s affirmance on some thirteen grounds. His first four arguments deal with alleged errors of the district court: (1) in setting aside the default judgment, (2) in not reversing the board’s decision in view of its failure to comply with the Wyoming Administrative Procedure Act, (3) in not reversing the board’s decision since it had not adopted and filed rules and regulations, and (4) in finding there was substantial evidence to sustain the school board’s position that Jergeson was “responsible to censor the newspaper.”

His next seven arguments relate to the board. He alleges it gave no notice concerning a poem which appeared on the blackboard of the Ocksheperida room; that its dismissal of Jergeson for the use of the term “rape” was arbitrary, capricious and a violation of his right to due process of law; that it erred in admitting hearsay testimony taken at a previous hearing, in allowing the testimony of a Mr. Skar, and in making a finding as to appearance and dress of Jergeson; that it violated Jerge-son’s constitutional right to freedom of speech and expression; and that it failed to give him notice of all the charges against him.

Finally appellant argues that the existing method of appeal is either unconstitutional or if not requires a “zealous examination of the whole record by the reviewing authority,” and that evidence of acts performed or not performed prior to the time the board offered a new contract was inadmissible. At certain sacrifice of the overall discussion merited by a problem of this nature, we have addressed ourselves separately to each of the thirteen grounds raised by the appeal.

CHARGED DISTRICT-COURT ERRORS

Setting Aside the Default

The contention that the court erred in setting aside what appellant calls a “default judgment” is misconceived. It stems from two unwarranted assumptions, first that there was a default judgment, whereas there was merely an “Entry of Default” by the clerk of court; second, the proceeding in the district court was an “action” covered by the Rules of Civil Procedure, whereas it was a review under the provisions of Rule 72.1, W.R.C.P., issued by this court pursuant to § 9-276.32 (b). Reference to Rule 72.1, relating to judicial review of administrative action, discloses no requirement that ipso facto the opposing party is required to answer. From a consideration of both the Wyoming Administrative Procedure Act and the implementing rule, such review is in the nature of an appeal, which requires no answer to be filed.²

Failure of Board to Comply With Act as to Notice and Rules

Appellant’s second and third charges of error relate to the failure of the board to comply with the Wyoming Administrative Procedure Act, hereinafter referred to as the Act; first, as to lack of proper notice of the hearing, and second, as to failure to adopt rules of practice. He observes that, at the time of hearing, objection was made as to the sufficiency of the notice, § 9-276.25 requiring that the “authority” and “jurisdiction” under which the hearing was “to be held” and a statement of the particular “statutes and rules involved” be set out in the notice. He contends such a statement was not in the notice and maintains that the court erred in saying a waiver (which was attached to the notice and cited § 160 of the Wyoming Education Code of 1969 — § 21.1-160, W.S.1957 (1969 Cum.Supp.) — concerning suspension or dismissal of teachers) was “referred to and made a part of the notice proper,” arguing that the only reference to the waiver in the notice was, “A waiver form is enclosed,” and that unless the “requirements” set out in the notice of hearing conform with the statutory requirements said notice is insufficient.

While we can agree with counsel that the court’s saying the waiver was made a part of the notice is not literally true, we think the criticism is over-technical and that in all fairness the notice contained a reference to the statutory authority for its issuance. Moreover, we are inclined to the view that § 9-276.25(b) has been superseded as to notice by the specific provisions of § 21.1-160(a), which circumstance neither of the litigants have discussed. Imlay Township Primary School District No. 5 v. State Board of Education, 359 Mich. 478, 102 N.W.2d 720, 723.

As to the failure of the board to adopt rules and regulations required by the Act, this court has frequently called attention to the statutory requirement to adopt rules and regulations,³ and it is most unfortunate that various agencies have neglected so to do. Undoubtedly, a court would, upon request by an interested person, direct an agency to comply.

Jergeson made a motion before the board that the proceedings be terminated because he was prohibited from having a fair hearing since no appropriate rules and regulations for the conduct of a hearing had been adopted in accordance with § 9-276.20(a) (1). Appellant's motion was general in nature; and while no particular allegations are necessary, the motion was not sufficiently specific to apprise the board wherein he was prejudiced by its failure to adopt rules of practice. Furthermore, he has not cited authority nor made convincing argument here that the nonadoption was fatal. It is conceivable that upon a showing of an agency’s failure to adopt rules the agency would be required to assume the burden of showing an appellant not to have been prejudiced. However, where as in this instance a procedure is detailed by the statute the appellant has the duty of pointing out specifically where any disadvantage lies. We recognize that there could exist situations in which a failure to adopt rules of practice would be sufficiently prejudicial so as to constitute a basis for setting aside a decree or order; and if such a predicament is to be avoided, all agencies should immediately adopt rules as the statute contemplates.

Newspaper

We find it somewhat difficult to grasp the purport of this aspect of appellant’s argument. He preliminarily states that “The court erred in finding that there was substantial evidence to sustain the school board’s position that Jergeson was responsible to censor the newspaper,” but while calling attention to the board’s finding that the teacher was the faculty adviser of the Ocksheperida does not pinpoint any erroneous “finding” of the court. Appellant maintains that there were no rules and regulations concerning the responsibility for the paper and that without a definite policy concerning the paper the board should not be allowed to dismiss for something Jergeson was not directed to do, but also states that it was Sara York, the editor and author of the questioned article, who was responsible for the newspaper. At one point appellant says that this was the joke edition of the newspaper and that the author testified she thought the disputed article was funny; at another he seems to argue that the editor had a right to criticize, citing Zucker v. Panitz, S.D.N.Y., 299 F.Supp. 102, 105, as explicitly in point when it said:

“This lawsuit arises at a time when many in the educational community oppose the tactics of the young in securing a political voice. It would be both incongruous and dangerous for this court to hold that students who wish to express their views on matters intimately related to them, though traditionally accepted nondisrup-tive modes of communication, may be precluded from doing so by that same adult community.”

While the whole of this argument may well constitute a perfect “shotgun” approach, it presents no valid ground for reversal. In view of the testimony of the school principal that Jergeson conducted a class in journalism and was the adviser to the school newspaper — the two intermingling — and as adviser was responsible for those who work on the paper and the production of the paper, and that of Sara York who said that Jergeson in no way advised her concerning the questioned article in the newspaper and that although she “imagined” he saw it before it was published she did not remember his discussing it with her or giving her any criticism, we consider the trial court’s opinion in regard to the newspaper well grounded:

“ * * * [Other incidents and] his apparent approval of a picture of a row of urinals in the school newspaper are not exactly fine examples to set for impressionable students. It is not that these students or at least a part of them have not been exposed to a more base and filthy humor outside the schools but in the halls of an institution where lofty ideals and examples should be the rule, it is out of place. The School Board obviously was offended by this conduct which could well be classified as incompetency.

⅝ ⅝ ⅝ ⅝ ⅜ ⅜

“Tinker vs. De[s] Moines Community School District, [393 U.S. 503, 89 S.Ct. 733] 21 L.Ed.2d 731, is cited by Plaintiff as giving the students the right to express critical opinions of the disciplinary action of certain teachers, in the ‘Old Meany Master’ article and the Letter to the Editor. One expression in that case strikes the Court as being applicable. At page 741, it is stated that a student may express his opinion if he does so ‘ “without materially and substantially interfering with appropriate discipline in the operation of the school” and without colliding with the rights of others.’ It seems to the Court that the Board of Trustees could have well decided that the mentioned articles appearing in the Ocksheperida did interfere with the discipline of the school and did collide with the rights of others, namely the teachers and administrators of the school, involved in the two matters there discussed. The School Board could have well decided within its discretion that when the faculty member in charge of the Ocksheperida and instructor in journalism permits such articles to appear that he is in this way expressing his incompetence.

“The students in speaking out in the school paper as they did were not entertaining a subject such as the war in Vietnam or some controversial matter of a public nature but were making personal attacks on members of the faculty. There is a regular way to make such complaints and that is to the Principal, the Superintendent or to the Board of Trustees, where these matters may be aired and if necessary a hearing had. It would appear on the face of it that these articles were written in a more serious vein than mere jesting and in a spirit of fun. They were clearly barbed. The school board could well be justified in deciding that this is a demonstration in poor journalism, one of the subjects taught by Mr. Jerge-son and another example of his incompetency. The Court would not want to defend the proposition that the board was arbitrary, capricious and unreasonable in doing so.

⅜ ⅝ ⅜ ⅜ ⅜ ⅜

“ * * * [Other incidents and Mr. Jer-geson’s] failure to adequately supervise a school newspaper with which he was charged may be manifestations of his loose views and the Board of Trustees could well so conclude.”

CLAIMED BOARD ERRORS

Poem

Appellant argues that his dismissal was discriminatory, a violation of due process for failure to give notice, and was arbitrary and capricious as to any “alleged dirty poem” which a student wrote on a blackboard in his high school classroom, appellant permitting it to remain there for approximately two weeks.

On the notice aspect, it is claimed the board should not have accepted testimony about the poem since appellant was given no notice by the school board “concerning testimony.” We have heretofore set out the reasons given by the board to Jergeson for his dismissal. While the stated reason that his philosophy and practice of education was detrimental to the best interests of the high school students did not provide a delineation of incidents, it was basis for questioning — especially in the absence of objection — concerning various activities in the school. Additionally, under the Act the discovery procedure provided in the Wyoming Rules of Civil Procedure was available to him.

Appellant’s “discriminatory” charge is based upon the fact that another teacher also used the room in which the blackboard and poem were located, no action of dismissal being taken against her. It is, of course, obvious from the record that the school board did not base its action on this single incident but rather investigated various occurrences and circumstances which were considered in the determination of whether or not the teacher met the minimum standards of conduct and propriety. Thus, both the discriminatory charge as well as the claim that the board was arbitrary and capricious are without merit.

Use of Term “Rape”

Appellant maintains that the alleged use of the term “rape” before a group of high school girls was insufficient ground to deprive a man of his livelihood and that, further, there was no notice that this was a ground upon which the board would rely to dismiss him. For the reasons stated under the preceding point, this did not constitute error.

Hearsay Testimony

Appellant argues that the board raised a question of his personal beliefs by hearsay evidence as to the use of marijuana and the takeover of school administrative offices for just cause, insisting that a man is entitled to hold any belief he so desires and cannot be condemned nor fired for his personal beliefs. The challenged evidence was the testimony given by the chairman of the board, Marion Ladd, as to statements made by appellant at an executive session of the board in April 1969. Since the witness’s testimony did not depend upon the veracity or competency of a person other than himself, we do not view the evidence as hearsay;⁴ furthermore, at the time such testimony was adduced, no objection was made on that basis to its introduction.

Skar’s Testimony

The board found that during the school year 1968-1969 appellant invited a local businessman (Edmund Skar) to lecture the journalism class; that while he was lecturing, students arrived late, talked to each other audibly, and some walked out of the classroom; and that appellant, who was present, made no effort to control or discipline the students.

Although appellant asserts that the board erred in allowing Skar’s testimony, such position is not made clear. Without argument or presentation of authority, it is merely said that the board waived any wrongdoing during the period of appellant’s teaching by offering him a new contract; which statement unsupported as it is, does not merit discussion; and, without basis in the record, appellant assumes this was a laboratory class and that the late students as well as those who left early were most likely working on a laboratory-type assignment, requiring their temporary absence. Again, this allegation of error does not warrant discussion.

Finding as to Appearance and Dress

It is urged that consistent with Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510, the right to wear a beard and to wear the attire he so chooses as long as it is neat are among rights of privacy flowing from the first eight amendments to the United States Constitution and attention is called to the board’s finding:

“Although, Mr. Jergeson appeared at the hearing in a business suit with his beard and hair trimmed, prior thereto he was seen by members of this Board when his appearance was inappropriate for the teaching profession.”

This could not well be a basis for reversal in view of the board’s conclusion:

“His personal appearance did not afford grounds for removal. However, his gc.. eral appearance did not set a proper example for high school students.” (Emphasis supplied.)

Failure to Give Notice of All Charges

Appellant contends that failure of the school board to give him notice that he would have to defend against the allegations of Skar as to his ability as a teacher; to defend against a charge that he permitted a poem to be placed upon the board; that he used the term “rape” before a number of girls to try and keep them quiet; and failure to wear his hair, beard and clothes the way the board wanted, constituted a violation of his right to notice as required by the Act and of due process of law. In view of our previous remarks, no further discussion would now appear warranted. However, we might refer to appellant’s observation that the need to preserve academic freedom from the chilling effect that necessarily attends the dismissal of a teacher without justification and in violation of his constitutional rights has been zealously protected by the Supreme Court and by lower Federal courts who have similarly acted vigorously to protect school teachers. With this we are in full agreement but do not see any violation of appellant’s constitutional rights in the instant case nor lack of justification for the dismissal. We have given careful consideration to the case of Parducci v. Rutland, M.D.Ala., 316 F.Supp. 352, submitted by appellant following the argument herein, but are unable to agree that such case is “right in point.” It deals with a situation where plaintiff was conceded by the parties to be a good teacher save for one incident (completely unrelated to any criticism the board had of appellant’s conduct here), while in the present controversy a number of matters were reviewed by the board and held to be conduct below the requisite minimum standards of a high school teacher in the institution. Academic freedom must be viewed as an interest of all society, but this does not mean that improper conduct can be condoned under the guise of such freedom.

In Tracy v. School Dist. No. 22, Sheridan County, Wyo., 70 Wyo. 1, 243 P.2d 932, 937 (rehearing denied 70 Wyo. 22, 247 P.2d 153), we held that a teacher agrees by necessary implication that while he continues in his employment his moral conduct shall be in all respects exemplary and beyond just reproach; that entrusted as the teacher is with the education of the young, it becomes of primary importance that the principles of right living be by him instilled into them by his example and by his conduct.

FINAL ARGUMENTS

Appellant argues that the existing method of appeal is either unconstitutional or if it is not a “zealous examination of the whole record by the reviewing authority” is requisite, and that evidence of acts performed or not performed prior to the time the board offered a new contract was inadmissible. No detailed analysis of these final points is merited. Appellant presents neither cogent argument nor authority on his position that if the board failed to inquire into the conduct of Jergeson prior to March 11, 1969, when it offered Jergeson a contract, it waived any such alleged misconduct and was precluded and estopped from raising such issues at a later date, and that claim will not be considered. School District No. 9, County of Fremont v. District Boundary Board In and For Fremont County, Wyo., 351 P.2d 106, 109. As to appellant’s point that the method of appeal is unconstitutional if it does not require a “zealous” examination of the whole record, his thesis is premised on the claim that where there is a clear abuse of the rights of public employees, this court must overrule the administrative tribunals. However, he has shown no such abuse of his rights. The board after a hearing made various findings indicating a departure by appellant from standards which we have heretofore indicated to be proper. The district court, carefully reviewing the evidence and hearing argument, determined there was no ground for reversal, and nothing has been here presented which convinces us of existing error.

Affirmed.

1 . Marion Ladd, chairman of the board, was present and testified, but did not participate in the conduct of the hearing or the findings, conclusions, and order.

2 . The provision in Rule 72.1(e), W.R.C.P., that certain prerogative writs “shall be available by independent action” has no relevancy in this proceeding.

3 . Rolfes v. State ex rel. Burt, Wyo., 464 P.2d 531, 532; Scarlett v. Town Council, Town of Jackson, Teton County, Wyo., 463 P.2d 26, 27-28; Glenn v. Board of County Commissioners, Sheridan County, Wyo., 440 P.2d 1, 3.

4 . Murdock v. State, Wyo., 351 P.2d 674, 679.