Watts v. Seward School Board

454 P.2d 732, 1969 Alas. LEXIS 229

• Court: Alaska Supreme Court
• Decided: May 12, 1969
• Docket: 427
• Status: Published

Opinions

NESBETT, Chief Justice.

This is the third time this case has been before us.

Our last decision was a comprehensive de novo consideration of all of the issues raised by appellants.¹ The judgment entered as a result of that decision was vacated by the Supreme Court of the United States on June 3, 1968, with a remand to this court for further consideration in the light of the June 3, 1968, decision of that court in Pickering v. Board of Education of Township High School District 205, Will County, Illinois, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

In Pickering a newspaper published a letter to the editor from a high school teacher which discussed a proposed property tax intended to be used for educational purposes. The proposed tax had just been defeated at an election. Other letters had already been written to the newspaper by the school superintendent and the teachers’ organization. Pickering’s letter was a response to these letters and joined in the discussion of the subject of the need for additional funds for educational purposes. The letter was critical of past education fund allocations made by the school board. Pickering’s dismissal by the school board was affirmed by the Supreme Court of Illinois.

In reversing and remanding the judgment the Supreme Court of the United States stated that teachers may not constitutionally be compelled to relinquish first amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the schools in which they work. The court stated, however, that the state does have interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of citizens in general.

The court said that the problem in each case is to balance the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the state as an employer, in promoting efficiency in the schools. The court held that it would not be appropriate in Pickering to attempt to lay down a general standard against which all statements could be judged, but stated that it would indicate some “general lines” for analysis of other factual situations.

The first factor mentioned by the court in Pickering was that the statements made by the teacher were not directed toward any person with whom he would normally be in contact in the course of his daily work as a teacher. Therefore, there was no question of maintaining discipline by an immediate superior or harmony among co-workers. The teacher’s employment relationship with the board and to a lesser extent with the superintendent were not the kind of close working relationship which required personal loyalty and confidence to their proper functioning.

In attempting to apply the above guideline to the case before us we shall consider those statements or accusations made in the “Open Letter To The Seward School Board” which can be related to the Pickering standard. In a preamble paragraph the letter alleged that the incidents cited were “definitely detrimental to the morale of our teaching staff and the effectiveness of the local educational system.” The letter was given widespread public distribution at the same time that copies were delivered to the superintendent and members of the school board. (421 P.2d at 592)

Item 2 of the open letter accused the administration of failing to create and maintain harmony in the school with the result that there was tension and friction among the pupils.

Item 4 accused the administration, which under the circumstances could only have been the superintendent, of ordering the custodian to do technical electrical work “beyond his skill in a dangerous building.” Board Finding No. 11 was that the superintendent had not ordered the custodian to do technical electrical work beyond his ability.²

Item 5 of the open letter accused the superintendent of threatening “to get one-third of the faculty this year, and half of the remainder next year”; of tampering with the livelihood of teachers, taxpayers, property owners, and of “upsetting the school system” and of “bringing teachers and others into public disgrace and disrespect.” Finding of Fact No. 12 of the board was that the superintendent did not make the statements alleged in Item No. 5 and that the charge was false. The board specifically stated in the finding that it had made the finding after resolving the direct conflict in testimony between that given by Superintendent Fabricius and appellant Watts in favor of Superintendent Fabricius and that the conflict had been resolved in part upon observation of the demeanor of the two witnesses.

In Finding No. 13 the board stated that the allegation contained in Item 5 of the open letter to the effect that the superintendent had jeopardized property investments of several people without legitimate cause referred to the non-retention of a Seward school teacher named Charles Brown. The finding stated that Mr. Brown was not retained by the board for the year 1959 through 1960 for cause, because of his inability to maintain discipline among his students. The board specifically stated that the allegation that the superintendent had jeopardized the property investments of several people without legitimate cause was false.

Item 6 of the open letter accused the superintendent of provoking the resignation of an outstanding teacher by forbidding him to ride in the school bus in violation of rules and regulations and by the apparent authoritarian mishandling of the teacher’s resignation impaired the teacher’s chances for a teaching position elsewhere. The result being that the school board and taxpayers were laid open to possible suit in connection with the teacher’s contract.

Finding No. 14 of the board was that Item 6 had reference to the resignation of former school teacher Jack Conder. The finding stated that Mr. Conder resigned after an argument with Superintendent Fabricius during the course of which Con-der was advised by the superintendent that he would have to remain at school until 4:20 p. m., as did all other teachers, and that he would not be permitted to leave at 4 p. m. in order that he might ride the school bus home. The finding stated that the superintendent did not forbid Conder to ride the school bus in violation of rules and regulations. The finding was that the statement contained in the item that the incident seemingly constituted a violation of the intent of the rules and regulations effecting school transportation was false.

Item 7 of the open letter accused the superintendent of “dictatorial treatment of teachers, forcing them into the choice of submitting and taking it at the loss of personal dignity, or fighting back in a public spectacle.”

Item 8 of the open letter accused the superintendent of speaking in a peremptory and threatening manner in the presence of a pupil to Mr. Smith.

Finding No. 15 of the board was that Item 8 referred to an incident in which a teacher named Smith argued with Superintendent Fabricius about the conduct of a study hall. The board found on the un-controverted evidence that Mr. Smith had lost his temper and had resigned. The finding was that on all of the evidence the superintendent had not acted in a peremptory or threatening manner and that the charge contained in Item No. 8 was false.

Item 9(c) of the open letter accused the administration of overtly or covertly driving out Mr. Conder, Mr. Swick, and Mr. Smith and other teachers who had a definite contribution to make to the functions of the school.

Finding No. 16 of the board was that Mr. Smith and Mr. Conder tendered their resignations and Mr. Swick, by his own actions, failed to renew his contract and was therefore terminated. The charge that the above three teachers were driven out was found not to be supported by the record and to be false.

Item 10 of the open letter accused the superintendent of firing Mrs. Davis (his personal secretary “apparently on the basis of personal dislike rather than for dereliction of duty or inefficiency.” The item charged that “this resulted in public discussion reflecting adversely on the school, and placed Mrs. Davis in the position of consulting an attorney relative to the collection of salary allegedly due her.”

Although the hoard made no specific finding with respect to Item No. 10 the un-controverted testimony of Superintendent Fabricius was that he had found Mrs. Davis, his secretary, to be unreliable in many respects and that after consultation with the board he had given her notice of termination at the close of the school year.

Unlike Pickering, appellants’ statements and activities did concern their immediate superior. In the relatively small schools in Alaska, such as at Seward, the school superintendent has a close working relationship with both teachers and students which may not exist in larger areas. Here Superintendent Fabricius was actively concerned with the discipline of the two schools at Seward. He served after school hours as a student discipline detention supervisor the same as the teachers. The teachers sent a “continual stream of youngsters” to him for discipline. Fabricius dealt directly with all of the teachers; he dealt directly with teachers who were not carrying out their duties properly. Appellant Watts, in attempting to enlist teachers during school hours on school premises to get rid of Fabricius, referred to Fabricius as the teachers’ “immediate superior.” With only 30 teachers in the Seward School System, and with Fabricius taking the active part in the two schools that he did, with no mention ever having been made by anyone of the high school principal, it is apparent that Fabricius was more than the school system’s superintendent — that he was in fact the school principal as well. Thus, considering appellants’ actions in attacking and attempting to oust Fabricius, there is definitely a situation here where appellants’ actions were directed toward a person with whom appellants would normally be in contact in the course of their daily work as teachers, and where a question of maintaining discipline by an immediate superior was involved.

It is also apparent that a question of harmony among appellants’ co-workers was present. In addition to the statements or accusations contained in the open letter the board found that appellant Watts had solicited teachers Mr. and Mrs. Benjamin Frampton and Monty Richardson, members of the teaching faculty, to go along with a group of which Watts was a representative and whose purpose was to oust Fabricius from his position. The testimony was that the solicitations occurred on school premises during school hours, and that the solicitation was Watts’ individual effort and not in any way authorized by the Seward teachers’ organizations. (421 P.2d at S9S) The statements and actions of appellants concerned Fabricius’ relationship to the students, teachers,, and staff personnel.

Many of the statements were openly derogatory of Fabricius. There was testimony that disclosed that appellant Watts had stated to a teacher, E. G. Naegel, during school hours and on school premises that, “if it was the last thing they would do they would get the superintendent.”

It seems evident that these acts on the part of appellants were detrimental to harmony in the two schools. Mrs. Frampton, a teacher, said to Watts: “What has Mr. Fabricius done to deserve such a thing as this?”, and she testified that in her estimation the profession of teaching was “diminished” as a result of the conversation with Watts. Watts stated, in connection with his conversation with Mrs. Frampton, that this “was a meeting of strong feelings”; that he was sorry they disagreed and that he “hoped there would be harmony again soon.” In addition, the stated purpose of the open letter was to advise the Seward School Board and the public of matters that were “definitely detrimental to the morale of our teaching staff and the effectiveness of the local educational system.”

We believe that what the appellants did, both in their open letter to the board and in their acts of solicitation among the teaching staff, could not help but be detrimental, not only to discipline, but also to harmony among appellants’ co-workers, and to the operation of the schools.

The second factor mentioned by the court in Pickering was that the question whether a school system requires additional funding is a matter of legitimate public concern on which the judgment of the school administration, including the school board cannot be taken as conclusive. On such questions free and open debate is vital to informed decision making by the electorate. Teachers are as a class the members of a community most likely to have informed and definite opinions as to how school monies should be spent. Accordingly they must be permitted to speak out freely on such questions without fear of retaliatory dismissal.

Unlike Pickering no question of the expenditure of school funds was involved in the case before us. None of the statements concerned matters on which the public voted. Superintendent Fabricius was not an elected official. The allegations generally were in the nature of grievances.

The third factor mentioned by the court in Pic'kering was that the only matters which were falsely stated were matters of public record which could be easily corrected by the school board and were stated in a manner which was perfectly consistent with good faith error. The court pointed out that only carelessness or insufficient information was responsible for the false statements and that the court was not presented with a situation where a teacher had carelessly made false statements about matters so closely related to the day to day operations of the school that any harmful impact on the public would be difficult to counter because of the teacher’s presumed greater access to the true facts.

In our previous decision it was pointed out that of the various charges which were compiled, reproduced, and distributed to the public at large by appellants, six were found to be false statements of fact. All of the false statements in the charges reflected on the integrity and professional ability of the superintendent. Those concerning his overbearing and arbitrary treatment of the named teachers were professionally degrading to him. All of the false statements were an indictment of the administration of the Seward School System as a whole. (421 P.2d at 599).

Unlike Pickering the false statements were not concerning matters of public record which could easily be corrected by the school board. Unlike Pickering the false statements did concern matters closely related to the day to day operations of the school. The harmful impact of the false statements proved to be difficult to counter. The private effort to discredit and cause the school board to get rid of the superintendent failed. The individual attempts of appellants to discredit Fabricius reached such a peak that all of the teachers of the Seward District Teachers Association except two signed a letter prepared by teacher Richard Winters on his own initiative addressed to the Seward School Board protesting the “character assassination” of Fabricius. Appellants then unsuccessfully attempted to get rid of the school board by recall election.³ In our last opinion we said:

The production and distribution of the Open Letter was a time consuming and deliberate act. The false statements con-táined in it were not made in heated debate. The factual basis for the charges could have been verified by appellants if they had taken the time to do so. Appellants admittedly ignored established democratic procedure for obtaining redress. Instead, they attempted to arouse and inflame the public against the Superintendent and the School Board on charges which were largely untrue. They chose to attempt to substitute the mass meeting for the orderly process of hearing and appeal. (421 P.2d at 607)

Another review of the entire record in this case has not changed our views. Appellants’ false statements were not consistent with good faith and were made in reckless disregard of the truth.

The last factor mentioned by the court in Pickering was that the letter was treated by everyone except the board with “massive apathy.”

The result of the statements and of the activities of appellants were not greeted with “massive apathy” in Seward. Appellant Blue admitted that the open letter had been the subject of “no small amount of controversy in the last year and a half.” As has been mentioned, the open letter was merely the prelude to an unsuccessful attempt to recall the school board, which election was preceded by speeches by Superintendent Fabricius, appellant Blue, and apparently others. Shortly after publication of the open letter appellant Blue contacted at least three residents of the neighboring towns of Kenai and Soldotna in an attempt to obtain information of a derogatory nature about Superintendent Fabricius, who had been a superintendent in Kenai for six years prior to coming to Seward. (See 421 P.2d at 599)

In our previous decision we mentioned that we had reviewed the entire transcript of proceedings had before the Seward School Board and the State Board of Education, Appeal Hearing Committee and had found that there was substantial evidence to support the findings. (421 P.2d at 598) Our views have not changed. The criteria supplied by Pickering have been applied in another independent review of the record. Our conclusion is that the doctrine of Pickering can have no controlling application to the facts of this case.

In their brief appellants have argued that Seward School Board Regulation E-7 is unconstitutionally vague and overbroad and was never properly adopted. In a one paragraph discussion appellants have for the first time raised the point that the school board hearing was a denial of due process because it was not an impartial tribunal. In our opinion in Watts v. Seward School Board, 423 P.2d 678 (Alaska 1967), denying appellant’s petition for rehearing, we stated that we would not consider on appeal matters which were not first presented to the lower court. We denied appellant’s request that we consider for the first time the question of the constitutionality of Seward School Board Regulation E-7. For the same reason we decline now to attempt to consider the question of the constitutionality of the hearing procedure herein.

In our opinion in Watts v. Seward School Board, 421 P.2d 586, at 601-602 we reviewed the evidence in connection with the validity of Regulation E-7, found that it had been validly adopted, and affirmed the Seward School Board’s finding that appellants had violated this regulation as a separate, independent non-constitutional ground for their nonretention. Nothing in Pickering requires us to alter this finding which is hereby affirmed.

On pages 5 and 6 of the dissent AS 14.20.095 (1965) is quoted. This statute provides that no rule or regulation of the Commissioner of Education, a local school board, or a local school administrator may restrict or modify the right of a teacher to engage in comment and criticism outside school hours, etc. In our last opinion in this case in 421 P.2d at 605 we discussed this act of the legislature and pointed out that it could have no controlling effect on the facts of this case for the reason that it was not enacted to be retrospective and in any event was directed at the rules or regulations of a commissioner, a local school board, or a local administrator whereas in the case before us we were required to interpret and apply a state statute. We also pointed out that the new statute applied to activities conducted outside school hours whereas much of the conduct condemned in this case occurred during school hours and on school premises. At 421 P.2d at 609 we discussed the pertinent facts connected with the remand of this case by the Supreme Court of the United States in connection with Alaska statutes subsequently enacted which the dissent again now discusses.

Footnote 16 on page 7 of the dissent appears to be emphasizing an inconsistency by the majority in its last decision in connection with its consideration of Seward School Board Regulation E-7. There is no inconsistency. In 421 P.2d at 589 we pointed out that appellants had requested that the appeal be considered de novo in the light of recent United States Supreme Court decisions and that appellee had also again briefed and urged us to determine the question of whether the Seward School Board’s conclusion that appellants had substantially failed to comply with Seward School Board Regulation E-7 was not a sufficient independent cause for their non-retention. We obliged both appellants and appellee in their requests. The validity of adoption and application of Seward School Board Regulation E-7 was briefed by ap-pellee and the matter was covered in the majority’s decision. On petition for rehearing appellants for the first time raised the question of the constitutionality of Regulation E-7. It was at this time that the majority used the language quoted in footnote 16 of the dissent to the effect that it would not consider matters on appeal which had not been presented and briefed in compliance with court rules. We accordingly declined to attempt to consider on petition for rehearing the matter of the constitutionality of Regulation E-7. The question of the constitutionality of Regulation E-7 had not been briefed by appellant previously, in fact has never been briefed beyond cursory comment.

On pages 8 and 9 of the dissent our colleague points out that the record in this case contains no

parallel to the contemporary activities which have convulsed, disrupted, and at times destroyed academic institutions throughout this country. * * * Nor was any evidence presented that the school board’s or superintendent’s, actual administration of the school system was disturbed by the conduct of appellants. For here there was no physical seizure of buildings, or school offices; no attempts made by faculty members to interfere with the actual administration of the schools or with the students’ right to attend school; nor was the school board, or the superintendent, presented with a series of non-negotiable demands as an alternative to continued disruption of school administration and operation.

We agree that appellants’ activities herein did not reach the aggravated proportions of present day student riots. However, we do not consider this a valid argument in support of a reversal thereby undermining the authority of and requiring all state school boards to condone such activities in the future. The activities of appellants do bear a basic similarity to present student uprisings in that in each case existing procedures for correcting grievances and bringing about needful changes have been totally ignored in favor of the method of the public confrontation. Item 1 of the open letter had admittedly already been processed in early May as a grievance and settled to the complete satisfaction of all concerned. The balance of the items in the open letter were grievances which both appellants admitted had never been presented as grievances under Regulation E-7. Although the attempted confrontation in Seward disrupted the community for over a year, it did not reach riot proportions.

On page 9 the dissent quotes the testimony of appellant Blue in response to the question of whether he thought that teachers were less entitled to complain about a school board than ordinary citizens to which Blue replied:

I think that their position is identical with perhaps this exception, that being closer to the problems that perhaps they should make extended efforts first before publicizing the thing. The very thing we did throughout our history.

The record conclusively shows that appellant Blue and appellant Watts made no “extended effort” to process any of the grievances mentioned in the open letter, with the beforementioned exception of Item 1, before publicizing them. Their testimony was that none of the matters had been presented as grievances and both appellants freely admitted that Item No. 1 of the open letter was in fact not a grievance at all since it had been handled as a grievance early in May and had been settled to the complete satisfaction of everyone concerned. When asked why, if Item No. 1 had previously been settled in the usual grievance fashion, had it been included as a matter which required attention in the open letter, appellants had no reply except to state that they felt that it needed some “public discussion.” The fact remains that it was presented in the open letter as an existing grievance and not presented as a settled grievance which required further “public discussion.”

On page 10 of the dissent our colleague comments on the philosophy of appellant Blue and quotes him in considerable detail in that respect. The personal philosophy of appellant Blue was really not in issue at the school board hearing. While his philosophy, to the extent quoted, appears to be commendable, it should also be pointed out that the hearing produced considerable other evidence with respect to appellant Blue’s philosophy which may not have been considered so commendable by the Seward School Board insofar as a teacher is concerned. For example, the record reflects that when Mr. Blue was asked if he believed in God his answer was, “Yes sir, I do.” He then quickly asked that the question be reread, retracted his answer, and in response to the question as to whether or not he had ever made reference to the Bible as a book of fables answered, “No sir, I have not in those words.” When asked whether he denied making a statement to that effect his answer was, “No sir, I don’t, not to that general effect, but that’s a distorted version.”

The majority has made an independent and thorough examination of the entire record, as well as our dissenting colleague. On page 19 of the dissent our colleague points out that the Seward School Board has not shown that appellants “knowingly or recklessly” made false statements in the open letter. In this connection it should be pointed out that at the time the Seward School Board made its findings and conclusions New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 had not been decided and “knowingly or recklessly” had not. been established as a legal criterion. It should be noted that the Seward School Board did find' that certain of the statements were false and took disciplinary action as a result thereof. It should also be mentioned in connection with the dissent’s comment on page 19 that a review of the record as a whole furnishes considerable basis for concluding that classroom performance and administrative operations of the Seward schools were detrimentally affected by the activities of appellants. The fact that particular questions were not asked of the witnesses to elicit an answer which would specifically state that the schools’ operations were detrimentally effected has no bearing on the situation. The witnesses were required, as in all hearings, to testify to what they saw or heard or did. Their conclusions as to the effect would not generally be .admissible as usurping the functions of the hearing tribunal.

The appendix to the dissenting opinion reviews the favorable testimony elicited from the appellants and witnesses produced by the appellants. Unless read in connection with the testimony produced as a whole it can only present a distorted picture.

After due consideration of the facts of this case in the light of the guidelines of Pickering we must order that our judgment herein be reinstated. So ordered.

1 . Reported in 421 P.2d 586 (Alaska 1967).

2 . 421 P.2d at 594.

3 . See Blue v. Stockton, 355 P.2d 395 (Alaska 1960) where this court upheld appellant Blue’s contention that the Seward School Board was subject to recall.