Faulkner v. New Bern-Craven County Board of Education

Justice EXUM

dissenting.

The majority opinion does not address the question raised by plaintiff concerning the admissibility, or competency, of the hearsay evidence adduced against plaintiff on the ground that the “testimony of the witnesses Hardison, Motley, and Rice alone support the Board’s decision” that plaintiff engaged in the “habitual or excessive use of alcohol” in violation of N.C. Gen. Stat. § 115C-325(e)(l)(f). The majority’s decision reversing the Court of Appeals is based solely on its consideration of the testimony of these three witnesses.

First, I think the majority correctly restricts its consideration of the case to the testimony of the three witnesses named because the other hearsay, and in some cases double hearsay, evidence was, as plaintiff contends, incompetent and should not have been considered by the Board. Indeed, the Board itself apparently ignored most of this hearsay evidence. Except for its finding No. 8, referring to “other complaints” received by the principal and superintendent “during the early part of the 1981-82 school year,” the Board’s findings on the alcohol use issue, findings Nos. 4, 6 and 7, rest exclusively on the testimony of Hardison, Motley and Rice. The Board in its Court of Appeals brief, page 14, noted that evidence of Hardison’s student interviews “did not form the basis for any findings or conclusions by the Board.” The majority has now determined that the Board’s decision on the alcohol use issue may be sustained on the basis solely of the Board’s findings Nos. 4, 6 and 7.

The witness Hardison, who was principal of the school, testified that near the beginning of the 1980-81 school year he detected what he “believed to be the smell of alcohol” on plaintiffs breath. Plaintiff then denied that he had been drinking. Hardison, the school principal, asked Mrs. Satz, a school counselor and friend of the plaintiff, if she would consult with plaintiff about this conduct. Apparently plaintiff taught throughout the *61 1980-81 school year without further incident. At least there is no evidence of any violation on his part during that school year. Motley, a parent, testified that during the first week of the 1981-82 school year at the end of the school day she “believed” she recognized the odor of alcohol on plaintiffs breath. She also testified that plaintiff “was very, very nice. I asked him for the assignments, and, you know, he offered to help me, you know, go to Phillip’s locker and get his books, which we did; and he gave me his books and his assignments; and I left. You know, I was maybe in his presence maybe just a few minutes, three minutes, maybe.” Finally, Rice, a teacher, testified that she smelled alcohol on plaintiffs breath at a teacher’s workday before the opening of the 1981-82 school year. After school opened “once or twice, at least — maybe twice; not any more,” Rice smelled alcohol on plaintiffs breath in the morning before the tardy bell.

In addition to his own testimony that he had never drunk alcoholic beverages at school, plaintiff offered the testimony of the assistant principal and five teachers from MacDonald School who had known and worked with him for at least seven years and some for his entire twelve-year teaching career at the school. These witnesses had almost daily contact with the plaintiff during both the 1980-81 and 1981-82 school years. All of them testified that they had never smelled the odor of alcohol on plaintiffs breath. Several of these witnesses testified to plaintiffs good reputation among his peers and the orderliness with which he conducted his classes. On cross-examination, Hardison, the principal, testified that he had daily contact with plaintiff during the 1980-81 school year and at no time during this period, except for the one occasion at the year’s beginning, did he smell alcohol on plaintiffs breath. Hardison evaluated plaintiff as follows:

His strengths as a teacher I have found over the years has been his ability to manage his classroom, his ability to project an aura of being in control of his classroom, his organizational and his training knowledge in the area he was assigned to teach, and most especially, language arts; just, in my impression, has been and is, a talented and well-prepared and well-trained, and gifted in that area.

The upshot, therefore, of the evidence against this able, career teacher is that during two of his twelve years as a teacher *62 at MacDonald School one person smelled and two persons “believed” they smelled alcohol on his breath — once at the beginning of the 1980-81 school year and no more than three times at the beginning of the 1981-82 school year. When this testimony is weighed against the evidence favorable to plaintiff in the application of the “whole record” standard, I am satisfied that it does not support the Board’s conclusion that plaintiff has made habitual or excessive use of alcohol so as to justify his dismissal on this ground.

I am further satisfied for the reasons stated in the opinion of the Court of Appeals that the evidence fails as well to support the Board’s conclusion that plaintiff failed to fulfill the duties and responsibilities imposed upon teachers within the meaning of N.C. Gen. Stat. § 115C-325(e)(l)(i).

I vote to affirm the decision of the Court of Appeals.

Justice Frye joins in this dissenting opinion.