insubordination may be inferred from teacher's failure to obey the School District's directives
How later courts described this case
- insubordination may be inferred from teacher's failure to obey the School District's directives
Written by the judges who cited it.
The opinion
WARREN, J.,
dissenting.
I disagree with FDAB’s and the majority’s conclusion that the facts FDAB found to be true could constitute insubordination or neglect of duty under the circumstances of this case.
*810 To be sure, as the majority says, a school district may insist that a teacher on leave of absence give early assurance of intent to return and may adopt rules and policies to that effect. Here, however, there was no such policy or rule. It is not disputed that respondent’s only policy with respect to permanent teachers was to send such a teacher a written contract of employment and to give the teacher 14 days to decide whether to accept the teaching contract for the next school year. That was not done in this case. Instead, petitioner was given 72 hours to inform respondent of his intention for the 1980-81 school year. It is my opinion that in the absence of a specific policy or practice applicable to permanent teachers on leave, such teachers are entitled to be treated in the same manner as teachers not on leave.
Viewed in the manner I suggest, the treatment accorded petitioner was inconsistent with that accorded permanent teachers and was not pursuant to any rule, policy or practice justifying the difference in treatment.
The majority concludes that, because there is no evidence that respondent has previously had to deal with the situation of a permanent teacher on leave, there is no basis for finding inconsistent application of its procedures and that, therefore, respondent’s action toward petitioner was not arbitrary. In the sense that the difference in treatment was not without a reason for different treatment, I agree. But in the sense that respondent treated this teacher differently from others, without a policy or rule to do so, is so inconsistent as to amount to arbitrariness. See ORS 342.905(5).
Additionally, I conclude, as a matter of law, that petitioner’s conduct was neither insubordinate nor a neglect of duty. The Supreme Court said in Stephens v. Dept. of State Police, 271 Or 390, 394 , 532 P2d 788 (1975), quoting from Garvin v. Chambers, 195 Cal 212, 232 P 696 (1925):
“ ‘Insubordination can be rightfully predicated only upon a refusal to obey some order which a superior officer is entitled to give and entitled to have obeyed.* * *’ ”
In a specially concurring opinion to this court’s decision in N. Clackamas Sch. Dist. v. Fair Dis. App. Bd., *811 30 Or App 855, 858-59 , 567 P2d 1091 (1977), Judge Thornton wrote:
“The term ‘insubordination’ is not defined in the Fair Dismissal Law or elsewhere in our statutes, so far as I can find. In Barnes v. Fair Dismissal Appeals Bd., 25 Or App 177 , 548 P2d 988 , Sup Ct review denied (1976), although we were not called upon to define the term, we affirmed the order of the Board which in turn had upheld a charge by a school district that the teacher had ‘ “been insubordinate by continually and repeatedly refusing to adhere to district policy and administrative directives in the use of physical discipline with students * * *.” ’
“In other jurisdictions ‘insubordination’ has been defined as including the wilful refusal of a teacher to obey the rules and regulations of his or her employing board of education. [Citation omitted.] It has also been held to imply a general course of defiant, mutinous, disrespectful or contumacious conduct as distinguished from disobedience, which connotes a specific violation of an order or prohibition. [Citation omitted.]
“As I see it, ‘insubordination’ as used in ORS 342.865(1)(c) means an intentional and wilful refusal to obey, or disobedience of, an order or directive which a school board is authorized to give and entitled to have obeyed.” (Emphasis added.)
Petitioner had no duty to respond to either of the communications relied upon by the district and FDAB in finding insubordination. Respondent concedes that the May 20 telegram directing petitioner to indicate his intent to accept the contract for the 1980-81 year before noon on May 23 was not one it was entitled to have obeyed. The June 24 letter directed him to resign and stated that if he did not, he would be dismissed. Petitioner had no duty to resign and his failure to do so was, as a matter of law, not insubordination.
I respectfully dissent.