Kolp v. BD. OF TRUSTEES OF BUTTE CTY. JOINT

629 P.2d 1153, 102 Idaho 320, 1981 Ida. LEXIS 343

• Court: Idaho Supreme Court
• Decided: June 3, 1981
• Docket: 13109
• Status: Published

Opinions

DONALDSON, Justice.

Plaintiff-appellant James W. Kolp appeals the district court’s denial of his request for a writ of mandamus compelling the Butte County School District No. Ill to reinstate him as a teacher for the district. We affirm in part and we reverse in part with a remand for further proceedings de novo.

Appellant Kolp was employed as a certificated employee of the Butte County School District No. 111. During his employment, the Junior High School principal, John Reilly, received parental complaints concerning the paddling of three children by Mr. Kolp. Mr. Reilly investigated those complaints and made a written request to Ron Lowe, Chairman of the Board of Trustees, requesting a board hearing on the matter.

Following a formal hearing, the board of trustees passed a motion and resolution for discharge and termination of the contract of appellant Kolp. A letter from the board chairman notified appellant of the decision to terminate his contract.

Following his dismissal, appellant filed a complaint in district court requesting a writ of mandamus for reinstatement as a teacher and attorney fees. The district court, following a review of the board proceedings, determined that the board of trustees had based its decision upon a finding that appellant’s conduct was in violation of the district’s past adopted Teacher’s Handbook and in violation of the Code of Ethics of the Teaching Profession approved and published by the State Board of Education. The court found that the board was estopped from asserting the validity of the handbook as a basis for the teacher termination because of past failures to distribute, enforce and update the book. The court further found, however, that pursuant to statutory authority the board properly discharged the teacher for violation of the Code of Ethics. The court concluded that costs, including attorney fees, were not allowed to either party. Kolp appeals.

The role of the judiciary in settling teacher discharge disputes appears to be largely misunderstood. Contributing to this is that there is no specific statutory delineation of judicial appellate review for teacher dismissals made by the board of trustees of a school district. See Bowler v. Board of Trustees, 101 Idaho 537, 617 P.2d 841 (1980). This statutory absence leaves the teacher with but two methods of pursuing review: a mandamus application or a civil action for breach of the teacher’s contractual, statutory or constitutional rights. The role of the judiciary is dependent upon which the teacher chooses to file. Today, in an effort to clear up some of the misunderstanding, we specifically address what the standard of review is to be when the choice is mandamus.

Quite recently, in the analogous area of mandamus proceedings brought against boards of county commissioners over zoning disputes, this Court clarified and restricted the standard of review of local board actions by holding that mandamus would lie to require action

“only when the party seeking the writ ‘has a clear legal right to have an act performed[,] . .. the officer against whom the writ is sought has a clear duty to act ... and .. . the act be ministerial and not require the exercise of discretion.’ Saviers v. Richey, 96 Idaho 413, 415, 529 P.2d 1285, 1287 (1974); see I.C. § 7-302.”

Wyckoff v. Board of County Commissioners, 101 Idaho 12, 14, 607 P.2d 1066, 1068 (1980); see Cooper v. Board of County Commissioners, 101 Idaho 407, 614 P.2d 947 (1980) (Bakes, J., concurring opinion upon rehearing).

It has been long established that a local board’s act of discretion is subject to an additional area of inquiry in a mandamus request. In reviewing an application brought to compel a board of trustees of a school district to reopen a school, this Court held:

“Proceedings of this nature for writ of mandate, are not available to review the acts of boards in respect to matters as to which they are vested with discretion, unless it clearly appears that they have acted arbitrarily and unjustly and in abuse of the discretion vested in them. 55 C.J.S. Mandamus § 133, p. 223. The school affairs in the districts being placed under the control and guidance of the trustees, it is necessary that a broad discretion be accorded them to exercise their authority efficiently. 47 Am.Jur. Schools, § 47, p. 328; People ex rel. Ball v. Johnson, 1950, 341 Ill.App. 423, 94 N.E.2d 444.

“To establish capriciousness or arbitrariness on the part of a board requires more than conjecture or assumption, but must be clearly shown, it being presumed that public boards do not abuse their discretion and act from proper motives and valid reasons; 55 C.J.S. Mandamus § 324, p. 559. Here because the record fails to disclose such clear evidence of improper motive, invalid reason, capriciousness or arbitrariness, the trial court’s finding of abuse of discretion cannot be sustained.”

Wellard v. Marcum, 82 Idaho 232, 236, 351 P.2d 482, 483 (1960).¹ It has also been held that mandamus will lie only in those cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. I.C. § 7-303; District Board of Health v. Chancey, 94 Idaho 944, 500 P.2d 845 (1972).

In the instant case, the district court did not restrict its review of the teacher dismissal as set out above. Rather, the court adopted a broader approach, acquiesced in by all parties, which examined the proceedings extensively to determine whether the local board action was substantially supported by the evidence and whether the ultimate decision was arbitrary and capricious. This Court is of the opinion that this broad approach was inappropriate because the use of mandamus to compel reinstatement presents but a limited opportunity for judicial review of a board’s action.

We hold that the standard of review in a request for writ of mandate to compel reinstatement following a teacher termination by a school board is limited to an examination of whether the party seeking the writ has a clear legal right to have an act performed, and whether the action basically is ministerial, not discretionary. If discretionary, mandamus will not lie unless it clearly appears that the board has acted arbitrarily, unjustly and in abuse of discretion and there is not available other plain, speedy and adequate remedy in the ordinary course of law. On appeal to this Court, it is our task to apply this same standard, thereby constrained to the same limited review of the board’s actions.

Initially, applying the above in the context of a teacher discharge case, we hold that as regards the procedural aspects of a board’s action, there is no alternate adequate remedy available and mandamus is a correct approach for expedient resolution of such matters if, of course, the other above listed limitations in review are also observed. We so hold because of the nature of the contractual relationship between a teacher and a school board as determined by both state and federal law which establish certain procedural requirements for teacher discharges. A tenured teacher cannot be discharged without a showing of cause. I.C. §§ 33-513(4), -1208, -1212, -1213, -1215; Robinson v. Joint School District No. 150, 100 Idaho 263, 596 P.2d 436 (1979); Ferguson v. Board of Trustees, 98 Idaho 359, 564 P.2d 971 (1977). Terms negotiated between a teacher’s professional association and a school board are incorporated into existing teacher contracts. Buhl Education Association v. Joint School District No. 412, 101 Idaho 16, 607 P.2d 1070 (1980). Statutory rights are also embodied and implicitly included in a teacher’s contract. Robinson v. Joint School District No. 150, supra. Before a teacher can be discharged, he must be given adequate notice of the charges and the hearing date, an opportunity to present his case at a formal hearing, and a statement of reasons for his discharge. Bowler v. Board of Trustees, supra; Ferguson v. Board of Trustees, supra. The due process clause of the fourteenth amendment to the United States Constitution provides an additional procedural overlay protecting the rights of a teacher. Id. A discharged teacher seeking to remedy an error regarding such procedures should have speedy legal recourse available to do so.

“Mandamus is a summary and expeditious writ to compel performance of an established duty, . .. and the party seeking it may well regard the immediacy of its availability as one of its primary virtues. The basis for seeking mandamus— that is, default in the performance of a duty — commonly will be apparent long before the fact and amount of damages can be established. It is likely that the aggrieved party will not wish to delay the decision on the issuance of the coercive writ until the issues relevant only to a damage claim can be tried.”

Heaney v. Board of Trustees, 98 Idaho 900, 903, 575 P.2d 498, 501 (1978) (citations omitted). Thus, because the procedural requirements are so clearly delineated and expediency, otherwise unobtainable, is desirable, mandamus is an appropriate proceeding for reviewing the procedural aspects of the board’s action.

However, a teacher discharge usually can be separated into not only procedural but also substantive components, and it is quite a different matter when a discharged teacher seeks to remedy a substantive, rather than procedural error in the board’s decision. Firstly, in determining whether there is sufficient cause to discharge a teacher, the school board is not performing a “ministerial” act, but is instead performing a statutory function which “require[s] the exercise of discretion” for which mandamus ordinarily will not lie. Wyckoff, supra. Secondly, the discharged teacher does have an adequate remedy at law for resolution of substantive error. He may bring an appropriate civil action for breach of his contractual statutory or constitutional rights. See, e. g., Bowler, supra; see also, e. g., Rosecrans v. Intermountain Soap & Chemical Co. Inc., 100 Idaho 785, 605 P.2d 963 (1980). Thus, if the teacher is seeking to contest the action of the school board on the merits, a mandamus action is inappropriate.²

Having held that mandamus is appropriate to remedy those procedural errors for which there is not available other plain, speedy and adequate legal remedy, we now turn to the specific issues raised on this appeal. The first is whether the board’s action was procedurally improper because the board failed to suspend the teacher prior to discharge as required by statutory authority and procedures prescribed by the State Board of Education. This is an area of inquiry well suited for resolution within the parameters of a mandamus proceeding.

The then applicable statute, I.C. § 33-513(4), 1976 Idaho Sess.Laws, ch. 86, p. 295, gave the board the powers and duties:

“To suspend, grant leave of absence, place on probation or discharge certificated professional personnel for continued violation of any lawful rules or regulations of the board of trustees or of the state board of education, or for any conduct which could constitute grounds for revocation of a teaching certificate. No certificated professional employee shall be discharged during a contract term except under procedures prescribed by the state board of education.”

The State Board of Education Policy Manual for Public Schools provided in part:

“307.2 PROCEDURE FOR SUSPENSION AND DISCHARGE OF CERTIFICATED PROFESSIONAL EMPLOYEES DURING CONTRACT TERM

“The superintendent, acting as the authorized representative of the board of trustees, may suspend a certificated professional employee under contract by verbal notice which shall be reduced to writing not later than the succeeding day. Such suspension shall be limited to (1) continued violation of any lawful rules or regulations of the board of trustees or the state board of education, or (2) for any conduct which could constitute grounds for revocation of a teaching certificate. “Suspension of an employee under contract shall precede discharge, and the salary of the suspended employee shall continue until such time as discharge is effected or the employee reinstated.”

The district court noted in its memorandum opinion “that the Legislature granted the power to suspend, grant leave of absence, place on probation or discharge in the disjunctive. Nothing in the statute indicates that the school district must suspend a teacher before it is empowered to discharge that teacher.” (Emphasis ours).

We agree with the district court that the controlling statute, I.C. § 33-513(4), is written in the disjunctive and does not mandate suspension prior to discharge. Moreover, the procedure prescribed by the State Board of Education in § 307.2 does not definitively mandate suspension prior to discharge in every case. Therefore, we affirm the district court’s conclusion that suspension prior to discharge is not required and that there was substantial compliance with the relevant procedures prescribed by § 307.2 so as not to deprive the appellant of due process of law.

The remaining pertinent issues in this appeal center around the substantive question of whether there was sufficient cause to discharge the teacher. Appellant contends that the board failed to find the necessary degree of willful violation of the Code of Ethics, that portions of the code are unconstitutionally vague, that there is no substantial evidence to support the discharge and because there was insubstantial evidence, the board acted arbitrarily and capriciously in the discharge. Respondent raises in reply whether the district court incorrectly found that the corporal punishment regulation in the Teachers Handbook was not in full force and effect.

We find these remaining issues, including those concerning the handbook, to be inappropriate for consideration in a mandamus proceeding. The issues are substantive in nature, raising essential questions regarding the discretionary performance of the board’s statutorily authorized function. Mandamus may lie to compel only ministerial acts; it may not lie to control the discretion of a board. See Wyckoff, supra. The limited inroad upon this rule, that mandamus may lie if there clearly has been an abuse of discretion, presents, as noted above in footnote one, a high standard of proof. Moreover, as has been pointed out, substantive issues generally are not appropriate areas of consideration in a mandamus proceeding and are to be considered only if other adequate legal remedy is unavailable.

Appellant contends that the board, which itself manifested acquiescence in the administration of corporal punishment, acted arbitrarily and capriciously in sanctioning him for using corporal punishment. This contention calls into question the substantiality of the evidence supporting the discharge and raises a substantive issue which may not be considered in mandamus unless, as set out in the preceding paragraph, no other adequate legal remedy is available.³

To sum up, as we held above, the standard of review in an application for writ of mandate to compel reinstatement following a teacher termination by a school board is limited to an examination of whether the party seeking the writ has a clear legal right to have an act performed and whether the action basically is ministerial, not discretionary. If discretionary, mandamus will not lie unless it clearly appears that the board has acted arbitrarily, unjustly and in abuse of discretion and there is not available other plain, speedy and adequate remedy in the ordinary course of law. We note that the availability in teacher discharge cases of other appropriate civil actions would ordinarily preclude the substantive merits of the discharge from being raised by mandamus.

Accordingly, applying this standard to the facts before us, we find that the school board’s action in discharging the appellant was based upon valid statutory authority, initially I.C. § 33-513(4), which delineated the requisite rights and duties of teacher and board; the board complied with the procedural technicalities of the discharge; and the discharge itself was an exercise of discretionary authority carried out in nonarbitrary manner. Based upon the foregoing, we find no procedural infirmity and we therefore affirm the district court’s denial of the request for writ of mandate. To the extent the court conducted its review of the discharge proceedings in line with our application of the enunciated standard of review applicable in mandamus, the court did not err. To the extent the district court further looked into the substantive components of the teacher termination, the court did err. However, application of the proper standard of review, as set out above, provides sufficient support for the denial regardless of the district court’s excursion into substantive issues.

This Court recognizes, however, that the parties and the court below, in good faith, failed to see the limited nature of mandamus and both procedural and substantive issues were argued and tried. We have disposed of the procedural issues. In the interests of justice, we remand that portion of the case dealing with the substantive issues to the district court with directions to grant a trial de novo.4 Cf. Cooper v. Board of County Commissioners, supra (Bakes, J., concurring opinion upon rehearing).

That trial would present a proper forum for examination of the causes for the discharge. The teacher would have the burden of proof. The board’s decision would not be binding on the court.

One further issue is before this Court pursuant to I.C. § 1-205 which directs that when a new trial is granted, this Court shall determine all pertinent questions of law presented. The district court held that the Teachers Handbook was invalid. The court stated that one reason the handbook was not in force and effect was because of the provisions of I.C. § 33-506, which the court interpreted as requiring that each board, annually, must make its own rules and regulations. This is an erroneous interpretation. Idaho Code § 33-506 grants the board the authority to make by-laws, rules and regulations for its government and that of the district. The section does not require annual exercise of this authority. Just as the state legislature does not annually rewrite the Idaho Code, or even go through a formality of adoption of past law, so, too, a board of trustees need not do so. There is a continuity of rules and regulations duly enacted. The handbook provided validly enacted rules and regulations adopted by a past board pursuant to statutory authority and, as a matter of law, remained in effect. Any substantive argument, however, as to why the handbook should be deemed without effect would, of course, be an issue for consideration in the de novo proceeding.

Denial of request for writ of mandate affirmed. The district court’s disposition of matters outside the scope of review for mandamus, as set out above, is reversed. Case remanded for further proceedings in accordance herewith.

No costs. No attorney fees.

BAKES, C. J., and McFADDEN, J., concur.

1 . It must be noted that 55 C.J.S Mandamus § 133 also provides that in a review based upon an allegation of abuse of discretion, not only must such abuse be clearly apparent but also “before the judiciary will interfere in such a case it must clearly appear that such officer [or school board] has so far departed from the line of his duty under the law that it can be said he has in fact so far abused such discretion that he has neglected or refused to exercise any discretion.” Id. at 223-224. Thus, the standard of proof is high and this exception to the rule is severely limited. In the instant case, as pointed out infra, the standard has not been met.

2 . A mandamus action is inappropriate to contest a teacher discharge on the merits. This is not to say, however, that mandamus may never be used to review the substantive aspects of a decision by a board or officer. In those cases where there does not appear a plain, speedy and adequate remedy in the ordinary course of law, a mandamus proceeding may be the correct, if not the only remedy available. See, e. g., Ready-To-Pour, Inc. v. McCoy, 95 Idaho 510, 511 P.2d 792 (1973) (action to compel city to issue building permit); Dist. Bd. of Health v. Chancey, supra, (action to compel county board to fund a public health district); Wellard v. Marcum, supra (action to compel school superintendent and district to reopen school).

Additionally, as this Court noted in Heaney v. Bd. of Trustees, supra, the mandamus petition and the appropriate civil action may be joined in one proceeding, that is, if the teacher seeks to contest both the procedural and substantive aspects of the board’s action. However, they are distinct claims, and the trial of the two issues may of necessity have to be severed.

3 . If the board without apparent cause had not exercised any discretion at all and simply arbitrarily sanctioned the appellant for his use of corporal punishment, a court, in consideration of a request for mandamus, if there were no other adequate remedy available, could properly intervene. In the instant case, however, the school board, in its letter of termination to Mr. Kolp, said:

“[Y]ou did administer corporal punishment beyond legitimate and prudent bounds upon students...

“Such behavior was judged inexcusable. An inability to successfully work specific curriculum requirements does not warrant physical abuse as a stimulus to academic achievement.”

Moreover, the board had evidence before it, which it was entitled to believe, that one student was struck more than sixteen times, another more than ten times and a third about eight times, such “paddling” having been administered for failure to work problems on a blackboard. Notwithstanding their personal views concerning physical punishment in the classroom, which the individual members expressed in voir dire prior to commencement of the termination hearing and, arguably, indicate a consensus that some degree of punishment was acceptable, the board, nonetheless, determined that Mr. Kolp’s behavior went beyond any acceptable level.

This is not simply a matter of whether a board ministerially acted or failed to act or clearly abused its discretion. Appellant’s contention that there was abuse calls into question whether the board, in a deliberated exercise of its discretion, was supported by evidence which presented sufficient cause to discharge. This is an area of substantive inquiry outside the general scope of mandamus.

4 . While it is true that Kolp’s complaint requested only relief by writ of mandamus, it is clear that the substantive aspect of the board’s decision was at issue before the district court. Since that issue was tried with the implied, if not express, consent of the parties, the plaintiff should be given leave to amend his complaint to incorporate an appropriate cause of action. I.R.C.P. 15(b) permits amendment of pleadings to include issues tried by express or implied consent, even after judgment.