# Short v. Kiamichi Area Vocational-Technical School District No. 7

> Supreme Court of Oklahoma · September 13, 1988 · 761 P.2d 472

URL: https://www.frixlaw.com/law-library/cases/9603598

## Case

- **Full name:** Johnny M. SHORT, Appellant, v. KIAMICHI AREA VOCATIONAL-TECHNICAL SCHOOL DISTRICT NO. 7 OF CHOCTAW COUNTY, Oklahoma, Appellee
- **Court:** Supreme Court of Oklahoma
- **Decided:** September 13, 1988
- **Citations:** 761 P.2d 472; 1988 WL 74673
- **Precedential status:** Published
- **Opinion:** Dissent by Simms
- **Judges:** Kauger, Doolin, Hargrave, Hodges, Lavender, Wilson, Opala, Summers, Simms
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9603598

## Opinion text

SIMMS, Justice,
dissenting:
I dissent. The constitution does not require finding fault with the procedures used here in the nonrenewal of this teacher’s contract. The majority’s reliance on the Supreme Court decision in Cleveland Board of Education v. Loudermill, 470 U.S. 546 , 105 S.Ct. 1487 , 84 L.Ed.2d 494 (1985), is misplaced as that action is clearly distinguishable and is not controlling here.
It is true that Loudermill held that some kind of hearing must be afforded an employee with a constitutionally protected property interest in his employment prior to discharge. The majority, however, misapprehends that holding as requiring a hearing before the decision is made to terminate or nonrenew a contract. It is not the employer’s initial decision to terminate the employee which triggers the need for a hearing. It is, rather, the termination itself which must be accorded procedural safeguards. Due process requires notice and the opportunity for a pretermination hearing before the employee is deprived of that protected property interest.
In my view, that is precisely what our statutes provide. They fully meet the requirement of Loudermill by affording an employee notice of the charges and a complete due process hearing providing an opportunity to respond and present his side of the story prior to the time the “termination takes effect”. At 1494.
Mr. Short was not “terminated” when he received his notice. Under our statutory scheme Mr. Short continued to teach and received his wages and benefits under his existing contract from the time he received his notice in April until after his hearing, at the end of the school’s fiscal year on June 30th. His evidentiary hearing, originally scheduled for May was continued at his request until June. 1 Pursuant to 70 O.S. 1981 , § 6-103.4(B), a teacher, even if suspended, continues to work and receives wages following notice of a proposed contract nonrenewal or discharge until final determination of the action.
The majority dismisses as insignificant the very real differences between this case and Loudermill. Here Mr. Short continued to teach under the existing contract and drew wages until June 30, the end of the school’s fiscal year and after his due process hearing. In Loudermill, however, the employees were summarily “terminated” with their notice; their wages were cut off and they lost their jobs. In representing this point as an “untenable” argument that “constitutional rights may be purchased in exchange for wages”, the majority misapprehends the surrounding constitutional principles. It is the wages in Loud-ermill which constitute the essence of the “significant property interest” that is entitled to constitutional protection; the wages cannot be taken away without due process of law. Constitutional protections do not *480 exist in a vacuum. They arise to prevent the loss of a significant interest.
The decision in Loudermill is a reaction to the summary taking of wages. That is why the court points out there that if the government perceives a significant hazard in keeping an employee on the job until the appeal process is final, “it can avoid the problem by suspending with pay”. At 1495.
That is precisely what Oklahoma has provided in its statutes.
Because Mr. Short and other employees are not “terminated” when they receive notice, there is no need for the protection of a “pretermination” hearing at any point prior in time to the 70 O.S.1981, § 6-103.4 hearing.
The majority's additional observation that the due process protection offered administrators by § 6-102.4 supports the result reached here is puzzling. Administrators, the majority points out, receive a hearing on their proposed dismissal or non-reemployment before the local board of education prior to its decision becoming final.
This, the majority says, is “procedural due process”. This is to be distinguished, in the majority’s opinion, from what is afforded tenured teachers under § 6-103.4, which the majority perceives as less than procedural due process. I do not agree with the majority’s perception of § 6-102.4 as offering “better” or “more substantial” due process protections. I find rather that the procedure for hearing before the local board is “barebones” and quite limited. It is adequate only for the purpose for which it was designed — to give minimal protection to nontenured employees — administrators and probationary teachers. Both groups, of course, have no claim to tenure. See: §§ 6-102.1(4)(6); 6-103.1; and Bd. of Educ. Vici Schools v. Morris, Okl., 656 P.2d 258 (1983).
Under our statutes, both groups are entitled to only a hearing before the local board from which there is no right of appeal. Tenured teachers on the other hand are guaranteed many procedural protections for their hearing under § 6-103.4. Those statutes are set forth in the Appendix.
These statutes, together with § 103.4, appear to me to be a serious and studied effort by the Legislature to protect tenured teachers and guarantee them abundant procedural due process protections in meeting and refuting charges against them.
It occurs to me that while the majority believes it is adding protections for teachers, it is in reality taking them away. I do not believe that tenured teachers across the state will view striking § 103.4 with its attendant protections, and moving toward § 102.4 as a step up the rungs of the constitutional ladder.
In Harrah Independent School District v. Martin, 440 U.S. 197 , 99 S.Ct. 1062 , 59 L.Ed.2d 248 (1979), the Supreme Court held only that nonrenewal of a teacher’s contract for her refusal to earn required college credits, was rationally related to the school board’s objective of enforcing the continuing education obligation of its teachers and did not deprive her of equal protection. There the Supreme Court cautioned that their cases provide an “analytical framework” which should be employed in determining whether Fourteenth Amendment rights have been violated. The Court observed that while their decisions “do not form a checkerboard of bright lines between black squares and red squares, neither do they leave courts, and parties litigating federal constitutional claims in them, quite as much at sea as the Court of Appeals apparently thought was the case.” at 198. Following that advice in this case, leaves only the conclusion that constitutional rights have not been violated here. The “property interests” of tenured teachers are fully protected by our statutes. Mr. Short and those others similarly situated, receive notice and an opportunity to be heard before their discharge or nonrenewal is effected. They do not lose their wages or their positions pending the determination. Of what interest then are the individuals deprived without due process?
Our statutes provide, and this particular individual received, all due process require *481 ments necessary to protect these property rights. I would so hold.
APPENDIX
§ 6-103.4. Dismissal or nonreemployment of teacher — Procedure
A. Whenever a superintendent of a school district determines that cause exists for the dismissal or nonreemployment of a teacher employed within the school district, he or she shall submit a recommendation in writing to the board of education for such school district. In the case of a tenured teacher, the recommendation shall contain the one or more statutory grounds for the potential dismissal or nonreemployment. The recommendation for the dismissal or nonreemployment of either a tenured or a probationary teacher shall be approved or rejected upon a majority vote of the board’s members.
B. If the local board of education approves the recommendation of the superintendent, or determines on its own volition that a teacher should be dismissed or non-reemployed, the board shall cause written notice of the dismissal or nonreemployment to be mailed by certified mail, restricted delivery, with return receipt requested, to the teacher who is the subject of the action. In the case of a tenured teacher, the notice shall state the one or more statutory grounds for the dismissal or nonreemployment and the right of the teacher to have a hearing conducted by a hearing panel. In the case of a probationary teacher whose contract is not being renewed, the notice shall state the cause for nonrenewal and the right of the teacher to have a due process hearing conducted by the board of education. Pending final determination of a tenured or probationary teacher’s dismissal or nonreemployment, the local board may have the teacher suspended if the board determines that the best interests and welfare of the students in the school district require such action. Such suspension shall not deprive the teacher of any compensation or other teaching benefits to which he or she would otherwise be entitled by law or pursuant to his or her teaching contract.
C. Within ten (10) days of receipt of the notice, the tenured or probationary teacher shall notify by certified mail, restricted delivery with return receipt requested, the clerk of the local board of education of his or her respective decision.
D. If a tenured teacher fails to notify the clerk of the local board of education within the ten-day period of his or her desire to have a hearing on his or her dismissal or nonreemployment conducted by a hearing panel, the teacher shall be deemed to have waived his or her right to a hearing and the initial determination of his or her dismissal or nonreemployment by the board of education shall become final and nonappealable. If, within the ten-day period, the tenured teacher notifies the clerk of the local school board of his or her desire for a hearing conducted by a hearing panel, the clerk shall, not later than the end of said period of time, notify the State Superintendent of Public Instruction of such request.
E. If a probationary teacher fails to notify the clerk within the ten-day period of his or her desire to have a due process hearing on his or her dismissal or nonreem-ployment conducted by the local board of education, the teacher shall be deemed to have waived his or her right to the hearing and the initial determination of his or her dismissal or nonreemployment by the board of education shall become final and nonap-pealable. If, within the ten-day period, the probationary teacher notifies the clerk of the board of education of his or her desire to have a due process hearing on his or her dismissal or nonreemployment conducted by such board, the board shall, as soon as possible, hold a hearing. At the hearing the probationary teacher shall be afforded all such procedural due process rights as are guaranteed by the Oklahoma and United States Constitutions. At the conclusion of the hearing, the local board of education shall render a final and nonappealable decision on the question of the probationary teacher’s dismissal or nonreemployment.
§ 6-103.5. Hearing judge list
A. There is hereby created a hearing judge list which shall consist of the names *482 of not less than two hundred Oklahoma attorneys with trial experience provided by the Oklahoma Bar Association; provided, however, that no member of the Legislature shall be included on said hearing judge list or be eligible to serve as a hearing judge.
B. The individuals on the hearing judge list shall be appointed for terms of four (4) years or until their resignation or removal for cause by the State Board of Education or the Oklahoma Bar Association. Vacancies shall be filled in the same manner as provided for initial appointments. Individuals shall be eligible for reappointment to the hearing judge list.
C. Upon receipt of notification that a tenured teacher desires a hearing on his or her dismissal or nonreemployment as provided in Section 6-103.4 of this title, the Superintendent of Public Instruction shall, within ten (10) days of receipt of notification, designate twenty-one individuals on the hearing judge list to be eligible to act as hearing judge. The individuals so designated shall represent at least three geographic areas of the state. The State Superintendent shall send a list of such individuals to the tenured teacher and local board of education.
D. The tenured teacher and the local board of education, or its representative, shall select a hearing judge within twenty (20) days of receiving the hearing judge list by one of the two following methods:
1. If both parties agree on one individual from the list to act as a hearing judge, such individual shall serve as hearing judge; or
2. If the parties cannot agree on one individual to act as hearing judge, each party shall eliminate ten names from the list and the remaining individual on the list shall serve as hearing judge. In the process of elimination, each party shall eliminate no more than one name at a time, the parties alternating after each name has been eliminated. The first name to be eliminated shall be chosen by the tenured teacher.
§ 6-103.6. Scheduling of hearing
A.The hearing judge shall schedule a hearing on the tenured teacher’s dismissal or nonreemployment within ten (10) days after the judge is chosen. Upon scheduling the hearing, the hearing judge shall immediately notify the teacher of the time and place for the hearing and the procedures provided by law and by the State Board of Education pursuant to this act to be followed in selecting a hearing judge.
B. The hearing shall be held in the school district in which the tenured teacher is employed or suspended, in the county seat or in some other mutually agreeable place.
C. In his consideration of educational issues, the hearing judge shall be counseled and assisted by a person designated by the local board of education and a person designated by the tenured teacher. These three (3) individuals shall compose the hearing panel.
§ 6-103.7. Procedural due process to be afforded
At the hearing, and until final disposition of the case, the district superintendent or his designee shall represent the local board of education. The tenured teacher and district superintendent or his designee, as the representative of the local board of education, shall be afforded procedural due process at the hearing, including the following rights:
1. To have counsel of his own choice present;
2. To present witnesses in person or to present their testimony by interrogatories, affidavits or depositions. A list of any witnesses which are to be presented shall be furnished to the other party at least five (5) days before the hearing is scheduled;
3. To testify in his own behalf and give reasons for any actions or policies;
4. To have an orderly hearing;
5. To have a fair and impartial decision based upon the evidence; and
6. To have an official transcript of the hearing made.
§ 6-103.8. Powers of hearing judge
At the hearing, the hearing judge may:
1. Administer oaths;
2. Issue subpoenas for the attendance and testimony of witnesses and the produc *483 tion of books, papers and documents relating to any matter under investigation;
3. Receive evidence and limit lines of questioning and testimony which are repetitive, cumulative or irrelevant;
4. Call and examine witnesses and introduce into the record documentary and other evidence;
5. Preside over the course of the hearing and dispose of procedural requests, motions and similar matters; and
6. Take any other action necessary to make the hearing accord with administrative due process.
§ 6-103.9. Rules of evidence — Proof
A. The rules of evidence set forth in Section 310 of Title 75 of the Oklahoma Statutes shall apply to all hearings authorized by this act. The standard of proof shall be by the preponderance of the evidence and the burden of proof at the hearing shall be on the district superintendent or his designee, as representative of the local board of education, to establish that the teacher’s dismissal or nonreemployment is warranted.
B. The State Board of Education shall develop uniform standards and procedures to be used at such hearings; provided, the hearings shall be governed in all respects by the provisions of the Oklahoma Administrative Procedures Act.
§ 6-103.10. Compensation of hearing panel — Costs
A. The members of the hearing panel shall be compensated for serving in such capacity in an amount to be determined in advance by the adoption of appropriate rules and regulations by the State Board of Education.
B. The local board of education and the tenured teacher shall each be responsible for fifty percent (50%) of the expenses and cost of the hearing and the official transcript, excluding attorney’s fees of the parties involved.
§ 6-103.11. Written report — Contents
A. Within thirty (30) days from the time a hearing judge has been chosen, the hearing panel shall complete the hearing, prepare a written report and submit copies of the report to the superintendent of the school district and the tenured teacher. The report shall be written by the hearing judge. If the hearing panel cannot prepare the report within said period of time, the tenured teacher and superintendent of the school district shall be so notified prior to the end of such period. The hearing panel may then take additional time as is necessary, not to exceed forty (40) days from the time that the hearing judge was chosen, to prepare and submit the report. The tenured teacher and district superintendent or their designees may mutually agree to extend the time limit for preparation and submission of the report to an additional fifteen (15) days.
B. The report shall contain an outline of the scope of the hearing, findings of fact and conclusions of law and shall direct either of the following:
1. That the local board of education reinstate the tenured teacher with full employment status and benefits; or
2. That the decision of the local board of education for the dismissal or nonreem-ployment of the tenured teacher be sustained.
§ 6-103.12. Decision final
The decision of the hearing panel as contained in the report shall be final and shall be obeyed by the parties involved unless the tenured teacher or the district superintendent, as representative of the local board of education, appeals the decision to the district court. The provisions of the Oklahoma Administrative Procedures Act shall apply to such appeal.
§ 6-103.13. Hearing and appeal procedure
The applicable hearing and appeal procedure in the event of the dismissal or non-reemployment of a tenured teacher shall be that procedure provided by law on the effective date of such dismissal or nonreem-ployment.
. The Findings of Fact and Conclusions of Law of the Panel show that the hearing was originally scheduled for May 31, and was continued until June 24 and 25 at appellant's request. It also noted that counsel for appellant also "waived any objections to the date of the decision" in order to have additional time to study the transcript and prepare briefs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9603598. Public record. Not legal advice.