The opinion
Richard B. Adkissqn, Chief Justice, dissenting. The majority have held that the Hamburg School Board, hereinafter Board, has substantially complied with its own rules adopted pursuant to Act 400 of 1975, and has complied with the Teacher’s Fair Dismissal Act of 1979 (Act 766). I disagree. The purpose and intent of the Board rules are contrary to the purpose and intent of state law, Act 766 of 1979; the Board has complied with its own rules, but not with Act 766.
On March 18, 1980, the Hamburg School Board gave appellant, a nonprobatiohary teacher, notice of its decision not to renew his contract for the following year. This was done in accordance with its adopted policy No. III.C.4:
When the Board receives evidence which it considers sufficient to terminate a teacher either by dismissal or non-renewal of contract, it shall send to the teacher by certified mail with return receipt a notice of his proposed termination. The teacher may request that a statement of reasons be mailed to him; this request shall be in writing to the superintendent of schools. A statement of reasons will be mailed, after written request, in the same manner as the notice of proposed termination. The teacher will be advised in this second letter that upon request in writing to the president of the Board, with a copy to the superintendent within thirty (30) days of receipt of the Board notice, he will be accorded a hearing before official action is taken by the Board. (Emphasis added)
The Board’s policy contemplates a preliminary decision not to renew a teacher’s contract prior to giving him notice of his proposed termination. This provision is in accordance with prior law, Act 319 of 1941, which provided that the school board give the notice of nonrenewal. Ark. Stat. Ann. § 80-1304 (b) (Repl. 1980). This part of Act 319 has been changed by Act 766 of 1979 which contemplates that school boards not make a decision, preliminary or otherwise, not to renew before giving the teacher notice and a hearing.
The Teacher’s Fair Dismissal Act of 1979 (Act 766), Ark. Stat. Ann. §§ 80-1264 — 1264.10 (Repl. 1980) provides in § 1264.3 that “the teacher is notified by the school superintendent that the superintendent is recommending that the teacher’s contract not be renewed.” And § 1264.8 provides that a nonprobationary teacher who “receives a notice of recommended nonrenewal may file a written request with the school board of the district for a hearing,” and further provides for making a record of the hearing. Section 1264.9 (b) provides that upon completion of such hearing, the Board is to make its decision within ten days from the date of the hearing and allows a nonprobationary teacher an appeal to circuit court. This Act clearly anticipates that the nonprobationary teacher will be given notice of the superintendent’s recommendation and an opportunity to be heard before the school board makes a decision on non-renewal of the teacher’s contract.
The appellee has simply failed to update its procedural rules to conform with state law. The Board followed its written rules but ignored Act 766 of 1979 and “voted not to renew” the teacher’s contract prior to notifying him of its proposed actions. There could be no clearer violation of a teacher’s right to procedural due process.
Act 766 was no doubt enacted, at least partially, to avoid just such a situation as we have here. The superintendent of schools was purposefully placed between the teacher and the Board so that the Board would not be required to make a determination before having heard the teacher. This is not to say, however, that the school board cannot act without the recommendation of the superintendent. In Fullerton v. Southside School Dist., 272 Ark. 288 , 613 S.W. 2d 827 (1981) we held a school board could give the necessary notice of proposed nonrenewal where the superintendent was unwilling to do so. The school board has the ultimate responsibility for the operation of the school district.
I am hereby authorized to state that Hays, J., joins me in this dissent.