recognizing that “[t]he law is well-settled that the school board for the district that initiates charges against the teacher may also conduct the hearing, absent actual bias or prejudice”
How later courts described this case
- recognizing that “[t]he law is well-settled that the school board for the district that initiates charges against the teacher may also conduct the hearing, absent actual bias or prejudice”
- equitable doctrine of laches bars a claim if "an unreasonable delay prejudices an opposing party”
- Blackmar, Sr. J., concurring
Written by the judges who cited it.
The opinion
CHARLES B. BLACKMAR, Senior Judge,
concurring.
I announced my concurrence in the principal opinion before I realized that there would be a dissent, which was not filed until after my retirement from the Court. Now, after examining the dissent, I reiterate my concurrence. Because of the importance of the case I elect to set forth some additional thoughts, primarily in response to the dissent.
A tenured teacher’s position is a valuable asset, which should be divested only on sound substantive grounds consistent with the governing statutes and in accord with the prescribed procedure, designed to afford due process of law. The school authorities, nevertheless, must be able to evaluate teachers and to eliminate those who, after being given the opportunity, fail to perform according to the standards.
Section 168.116.2 deals with claims of “incompetency, inefficiency or insubordination in the line of duty....” on the part of a tenured teacher. The claim of “insubordination in the line of duty” is one which should be capable of very precise statement. But there is no charge of insubordination here. The items complained of in the January 31,1990 letter seem to fall into the statutory categories of “incompetency” or “inefficiency,” which are much more difficult to describe with exactitude.
I agree with the principal opinion that the documentary record and the history of remedial efforts prior to January 31, 1990 may be looked to in determining whether the statutory warning notice was adequate. It is entirely appropriate for the school authorities to give informal warnings in the hope of remedial action, in advance of the formal statutory warning. It might be preferable to refer to previous reports and meetings in the statutory warning, but it would be unreasonable to assume that the *421 teacher was ignorant of what had gone on before.
The teacher, moreover, may properly be expected to raise questions of inadequacy of the warning letter, if she believes that further details are necessary. The warning letter is a remedial step, designed for improvement and correction. The superintendent and the teacher are directed to “meet and confer,” with the superintendent authorized to designate representatives for meetings and conferences. The record shows that the parties did meet and confer. The teacher should not engage in sandbagging tactics, by participating in the meetings and counseling sessions but then claiming that the entire procedure was fatally flawed from the time the warning letter was issued. This teacher received very specific information both before and after the warning letter was served. I am persuaded that there was substantial compliance with the letter and the spirit of the statute.
Perhaps warning letters should contain language such as, “if you need further information about the performance deficiencies detailed above, please get in touch with the undersigned.” But it is still reasonable to expect this appellant to ask for further specification, if she is in doubt.
The principal opinion attempts to reconcile and harmonize some dozen cases from the several districts of the court of appeals dealing with problems under § 168.116. I do not find these efforts either productive or helpful. I rather content myself with the observation that a warning letter should set forth the details of the complaints as explicitly as their nature will permit, that prior remedial efforts may be looked to as an aid to the interpretation of general complaints, and that participation in remedial and counseling sessions following receipt of a warning letter may effect a waiver of more detailed specification.
The dissent charges the “warehousing” of complaints, and would throw the flag so as to require that the whole procedure be run through again. The record persuades me that the school authorities dealt reasonably with the appellant teacher, over a period of many months, in attempting to help her correct numerous deficiencies which they perceived. A contrary holding would make it extremely difficult to terminate a teacher unless specific misconduct is demonstrated. The statute does not so limit the school authorities.
The decision is supported by substantial evidence on the record as a whole. Whether it is a proper decision is commended to the judgment of the Board of Education and not to the courts.
With these observations I maintain my concurrence in the principal opinion and in the judgment of affirmance.