Appendix — White v. Board of Trustees

19

APPENDIX A

John WHITE, Appellant,

Petitioner,

v

BOARD OF TRUSTEES OF WESTERN WYOMING

COMMUNITY COLLEGE DISTRICT and Mr. Ron

Vosika, in his official capacity as President of the Board

of Trustees, Appellees,

Respondents

No. 5601.

Supreme Court of Wyoming.

July 20, 1982.

Rehearing Denied Aug. 9, 1982.

Before ROSE, C.J., and RAPER, THOMAS, ROONEY

and BROWN, JJ.

RAPER, Justice.

This appeal is from an order of the district court

sustaining the action taken by the Board of Trustees of

Western Wyoming Community College District (appellee)!

in terminating appellant's teaching contract. Appellant's

termination was premised upon his permitting members of

the school band, while on tour under his supervision, to

consume marijuana and alcoholic beverages, and for his

own consumption along with the band members, as well, in

breach of the terms of his contract. Appellant presents the

following issues for our review:

“A. Whether the Appellees terminated Appellant's

teaching contract without sufficient notice, hence

without due process of law.

Footnotes begin at page 46

20

“B. Whether the Appellant had the burden to discover

evidence concerning charges not included in the notice

to him.

“C. Whether the Appellees erred in admitting irrelevant

and immaterial evidence concerning matters outside the

scope of the notice.

“D. Whether the Appellees’ termination of Appellant's

teaching contract was an abuse of discretion.”

We will affirm.

The appellant was an assistant professor of music at the

Western Community College (Coilege) pursuant to his

employment contract with that institution dated March 27,

1980. Portions of the contract include as terms:

“The said Instructor further agrees to well and faithfully

perform duties as an instructor in said College, and to

faithfully comply with all rules and regulations

established for the government thereof, whether

provided by law or adopted by the Board of Trustees of

said College; and to accept such assignments and extra-

curricular activities or duties as the Board of Trustees of

said College may deem advisable.

* * * * . *

“It is further agreed that this agreement may, ai the

option of said College, be declared null and void for any

of the following reasons:

* * * * . *

“2. Neglect, failure or refusal on the part of said

Instructor to carry out any provisions of this agreement.

. * > * * .

“4. Incompetency or failure to properly instruct and

govern the students in charge of said Instructor, or

21

failure to carry out properly any other duties assigned

said Instructor. [Emphasis added. ]

“5. Conduct on the part of said Instructor detrimental

to the best interests of said College or unbecoming an

Instructor in said College.”

On July 25, 1980, Dr. Slafter, president of the college,

served upon appellant the following notice:

“You are hereby notified that the Administration of the

College District has recommended to the Board of

Trustees that your employment contract be immediately

terminated.

“If you feel that the proposed termination of contract is

based upon the exercise of any of your constitutional

rights, or if you feel you have an expectation of

continued employment arising from express or implied

rules, agreements or policies of the College District, or if

you feel that the termination of your contract will imply

a stigma or disability on your reputation which would

foreclose your freedom to take advantage of other

employment opportunities, you may request prior to

August 14, 1980, the following:

“(1) Notice of the reasons for the proposed termination

of your contract.

“(2) A hearing before the Board of Trustees.

“(3) To have such hearing conducted within thirty (30)

days from and after receipt by the College District of

your request.

“(4) At any such hearing to appear with counsel, present

witnesses and other relevant evidence, and cross

examine adverse witnesses.

“(5) To be provided with the names of any and all

witnesses against you.

“(6) To inspect the written findings and results of any

such hearing.”

22

On August 12, 1980, appellant sent the following requests

to Dr. Slafter:

“TO THE ADMINISTRATION OF THE COLLEGE

DISTRICT:

“In reference to the notification of July 25, 1980 that a

request has been made to the Board of Trustees that my

employment contract be terminated:

“I hereby request notice of the reasons for the proposed

termination of contract;

“I hereby request a hearing before the Board of

Trustees—said hearing to take place after I have had

time to persue the list of reasons for my termination and

to consult with legal counsel as to the method of my

defense.

“Be it known at this time:

“I have expressed willingness on three separate

occassions to discuss in full with Dr. Slafter whatever

evidence is being presented against me.

“My requests for discussion have been denied.

“] have a valid contract with the Board of Trustees

signed, sealed and delivered prior to April 15, 1980. Ido

not believe legal cause exists for alteration of that

contract.”

On August 29, 1980 appellant received from Dr. Slafter

the following response:

“NOTICE OF REASONS FOR TERMINATION

RECOMMENDATION AND NOTICE OF

HEARING

“TO: Dr. John D. White

“Pursuant to my letter of July 25, 1980 and your request

dated August 12, 1980, I herewith give you notice in

writing of the reasons for the proposed termination of

your contract.

23

“You have since your arrival at Western Wyoming

College, continually engaged in conduct which has been

characterized by failure to comply with rules and

regulations for government of the college,

insubordination, failure to cooperate faithfully with the

Board of Trustees, the President and their duly

authorized agents, and which has been detrimental to

the College and unbecoming your position at the

College,? to-wit: [Emphasis added. ]

“I. Resistance to established evacuation procedures

during a duly authorized and legally required fire drill

in the residence hall area.

“2. Violation of regulations prohibiting possession of

alcoholic beverages in open containers in general use

areas of residence halls.

“3.- Use of profane and abusive language toward

students, custodial personnel, administrators, and

faculty members.

“4. Engaging in combative and menacing behavior

toward college employees.

“5. Lack of cooperation in response to a directive that

you vacate your quarters in the residency hall pursuant

to Board policy.

“6. Failure to pay rent for your residence hall quarters

in a timely fashion.

“7. Soliciting and participating in relationships with

students in a manner which is violative of generally

accepted community standards. [Emphasis added. ]

“Enclosed herewith you will find copies of all pertinent

documents relating to the matter of your proposed

termination and the reasons therefor.

“A hearing before the Board of Trustees has been

scheduled for 7:00 p. m. on September 10, 1980. If you

wish additional time to prepare for that hearing, you

24

should communicate that fact to me at your earliest

convenience.

“Also appended hereto are copies of Board policies and

rules of practice governing hearings.”

Attached to the August 29, 1980 letter, were some thirty

pages of material. Included were various college policies as

well as letters from specified individuals outlining their

grievances against appellant. There were three policies

provided which were related to the use of drugs and

alcoholic beverages. One of these documents was a copy of

Board Policy Code No. 5253:

“STUDENTS”

“Use of Alcoholic Beverages

“As a part of the total educational program of Western

Wyoming College, the College assumes an obligation to

educate its students as to the effect of alcoholic

beverages. The policy of the College prohibits the use,

possession or sale of alcoholic beverages on college

property whether leased or owned and at college

sponsored or supervised functions. [Emphasis added.]

“Students found to be in violation of this policy, or to be

intoxicated, or to have been drinking or using alcoholic

beverages on campus or college-supervised property or

at college-sponsored events on or off campus will be

subject to disciplinary action and/or prosecution in the

criminal courts. Due process will be insured through the

established judicial process.

“Minors under the age of nineteen (19) in the State of

Wyoming are expressly prohibited the use, purchase, or

possession of intoxicating beverages. However, those

students who are of legal age (over 19) who purchase for

or supply intoxicating beverages to minors are in

violation and will be presecuted and/or disciplined.

25

“As a preventive measure, the College, in cooperation

with Associated Students Government, local agencies

and organizations, will conduct from time to time

educational programs on the use and abuse of alcoholic

beverages.”

A similar document covered the use of illegal drugs. The

other pertinent document described itself only as

“File: GBCB.” It provided:

“STAFF CONDUCT

“Use of Drugs and Alcohol on School Premises by Staff

Members

“In order to protect the health, welfare, and safety of

students, no school employee shall be allowed on school

premises if the employee possess, dispenses, or in any

way transfers possession of, or is under the influence of,

or has in his blood stream any alcohol, drug, or any

substance prohibited by the Controlled Substances Act

of 1971.

“Violation of this policy shall result in suspension or

dismissal of the employee.”

On September 15, 1980 appellant asked for clarification

of what constituted improper student/teacher

relationships:

“Bert,

“Mr. Pat Hacker of Cheyenne is perusing the materials

given me on September 2. If he takes the case he will

contact Mr. Bussart concerning the hearings to

commence probably in mid-October.

“Can you please provide us with a copy of the policy

governing student/teacher relationships at Western

Wyoming College. Please emphasis [sic] the description

of relationships disallowed that I have allegedly

violated.

“/s/ JDW”

26

Mr. Hacker never contacted Mr. Bussart.

Dr. Slafter sent appellant the following response that

same day:

“Dear Dr. White:

“Appended hereto are written statements furnished by

Christopher Meehan, Earl Starks, and Jean Zueck at

my request, and received by me on the date noted.

“You are hereby advised that these statements will be

used as evidence during your hearing. Additionally, it is

the intention of the Administration to call Mr. Meehan,

Mr. Starks, and Mrs. Zueck as witnesses at that hearing.

You should transmit these documents to your attorney

at the earliest possible opportunity.

“I trust that copies of letters addressed to Mike

Wilkinson served upon you earlier, together with the

enclosed statement of Mr. Meehan, will suffice to meet

with your request of this date that I ‘emphasis [sic] the

description of relationships disallowed that I have

allegedly violated.”

“I am also enclosing a copy of a computer printout

evidencing your college housing rental delinquencies for

the months of July and August, 1980.”

The statement of Christopher Meehan accused appellant of

having attempted to seduce him upon the occasion of his

going to appellant’s quarters for dinner and alcoholic

drinks—“very much liquor”—and was “drunk both times.”

Earl Starks’ letter addressed problems arising within the

music department; appellant was charged with refusing to

cooperate. Jean Zueck, an employee at the college,

complained in her statement that appellant was

disagreeable and had on several occasions made her life

unpleasant. At a pretrial hearing it was stipulated by

counsel for appellant that these letters could be received in

evidence, as could other letters which appellant wished

received.

27

On September 18, 1980, Dr. Slafter's office received

appellant's request for still more clarification:

“Bert,

“| would appreciate ALL the evidence against me at the

earliest convenience. Your bringing these strange

reports out of the woodwork and trickling them to me

hardly serves to bring a timely end to this nonsense.

“No, my letters addressed to [the aforementioned

student] do not suffice to meet my request for a

description of the Western Wyoming College Policy

regarding student/ teacher relationships. Nor does the

statement from Mr. Meehan.

* * > > > >

“/s/ JDW”

The record does not reflect that Dr. Slafter ever responded

to this request.

A hearing was set for and held on December 12 and 13,

1980. The signed “Findings of Fact and Conclusion of Law”

included:

“6. John White is the leader of and instructor of a rock

band sponsored by the college, pursuant to the terms of

his employment with the college and as part of his

employment responsibilities with the college.

“7. The rock bank consists of students of the college who

are enrolled in the music department among others.

“8. The rock band makes several road trips during each

school year for the purpose of performing in the name of

the college.

“9. John White is in charge of the students, is the person

in authori” and is the representative of the college on

these trips.

“10. Some of the students who play instruments in the

rock band on these trips are under nineteen years of age.

28

“11. The vehicles used for transportation on these trips

are owned by the college.

“12. In the spring of 1980 while on a trip with the band,

and while in the college owned vehicle, John White

consumed alcohol and marijuana and permitted his

students including some who were minors to consume

alcohol and marijuana.

“13. John White purchased alcohol for students while

on trips with the band and permitted the consumption

of this alcohol while in the college owned vehicle.

“14. College policy is not to permit alcohol and

marijuana consumption on college sponsored outings

such as the rock band trips.

“15. Generally accepted community standards do not

permit the consumption of alcohol by minors or the

consumption of marijuana.

“16. John White is guilty of misconduct while on the

rock band trips and has engaged in improper student

teacher relationships as a result of his conduct on the

rock band trips.

“17. John White is in breach of his employment

contract.

“18. John White is hereby dismissed as a teacher and

instructor at the college effective December 13, 1980, for

good cause.”

In the first notice to appellant dated July 25, 1980, it is

noted that he was advised of a right “5S. [t]o be provided with

the names of any and all witnesses against you.” This was

discussed at the pretrial conference:

“MR. BUSSART: One thing your client did not request

the names of witnesses, all right? And so I didn't furnish

those although I made it clear in the notice that he hada

right to file such a request. So / don't want to be facing

an appeal here on the grounds we denied him due

29

process by failure to reveal the names of winesses when,

in fact, he didn't request them, and for that matter

neither have you.

“MR. ARON: Right, and I have no problem with that. |

think my concern is more what the subject matter of the

hearing is than those procedures, because | did have the

opportunity to get those from you. We spoke on the

phone.

“MR. BUSSART: Right.

“MR. ARON: I'm satisfied with that. | guess both of us

have a lot of surprise witnesses we didn't request from

each other.” (Emphasis added.)

At that time, there was read into the record the names of all

witnesses to be produced for the appellee, as was a list of all

those for appellant. Opportunity was accorded appellant to

interview witnesses before the start of the hearing. He only

wanted to interview three. During the opening statement

appellee's counsel dweit at adequate length on the

testimony of four students who would testify as to the

smoking of marijuana and consumption of liquor on band

trips, during which activity appellant was present, aware of

and participated, even buying some of the liquor.

During his opening statement, following that of

appellee's counsel for appellant expressed no surprise that

evidence of alcohol and drug use on band trips would be

presented nor did he move for a continuance for

preparation to meet those allegations. He objected to the

first witness testifying to such conduct but primarily on the

ground that it went to incidents arising after the charges

were itemized in the letter of August 29, 1980.? He made a

halfhearted objection to the subject matter. He referred to

charge “7” as “euphemistic,™ but never complained that the

charge would not include the conduct on band trips

reflected by the evidence.

30

Following the next witness for appellee, who had testified

of alcohol and drug use on the bus and during band tours in

the presence of the appellant, when the appellee called the

third witness and started inquiring about alcohol and

marijuana consumption on the bus trips by students and

appellant, appellant’s counsel made the following

objection:

“MR. ARON: Excuse me. We'll object on the grounds

this is repetitious. | assume we're going to recite the

same testimony. | believe Counsel has established by

testimony something about drinking and other conduct

on the bus, and we would request that any additional

testimony be restricted to something that is addressed to

that. I don’t think we have to hear it from every member

of the rock band if that’s what they intend to do.”

Counsel for appellee advised that there would be only one

more witness as to such conduct, in addition to the one then

testifying. The objection was overruled and the hearing

proceeded accordingly.

The last of the appellee's witnesses on charge “7” testified

not only as to the alcohol and drug use but also as to a

homosexual relationship he had with appellant on campus

in appellant's quarters and also on a trip to Reno, Nevada.

Then followed evidence of the school’s policies on

alcohol and drugs, of which appeliant had already been

advised, and evidence pertaining to the other six charges set

out in the letter of August 29, 1980. Appellee rested.

There was then no motion by appellant to strike the

testimony of any of appellee's witnesses, nor to dismiss the

charge seven. Appellant then went right into his case and

called nineteen witnesses, including the appellant. Dr.

White denied any homosexual relationships with anyone,

did not dispute the use of alcohol on the bus trips, refused to

31

testify on Fifth Amendment grounds with respect to

marijuana, declared that he would not be a “gestapo,” took

a position that whaiever students did was their business,

would prefer to abandon the band tours rather than police

students in drinking alcohol or smoking marijuana, and

pointed out that he was overqualified for the position he

held with the college. All of the several students called by

appellant who had been on the band trips as we'l as others

praised the work of appellant as an instructor; several

letters from various sources around the state introduced by

him without objection were complimentary toward

appellant and the rock band. On cross-examination, all of

the students but one who had beer on the trip and who were

called by appellant agreed that there had been consumption

of alcohol or marijuana or both during the tours (some saw

or acknowledged m< ce than others) and that there had bee.

minors >resent some of them high schoo! students filling

out the band and they also had consumed alccho! and

marijuana, one of whom had passed out. The mother of the

latter who had appeared to support appellant was

“stunned” to learn that it was her son who had become

unconscious from over-consumption.’ In a letter stipulated

to, written by appellant to a Dan, appeilant stated, “[mly

fault in this lies in running a loose ship perhaps * * *.”

It appeared that appellant's principal defense was that the

accepted “community standard” at Western Wyoming

College, in the high schools of Sweetwater County and

Rock Springs, and elsewhere in that area within the

environs of the college, was alcohol consumption and drug

use among the students and others of the younger sei.

At the close of all the evidence—there was no rebuttal—

appellant did not move for a continuance in order to further

defend as to the testimony with respect to alcohoi and

marijuana on band trips, though appellant did argue that he

32

had no notice that his relationships with students on band

trips was included in any of the material which he received.

The Fourteenth Amendment to the United States

Constitution and Article |, § 6 of the Wyoming

Constitution both prohibit the state of Wyoming from

depriving any person of property without due process of

law. This prohibition applies to all branches of the state

including the Western Wyoming Community College

District. Appellee has conceded that the appellant had “an

expectancy of continued employment and a property

interest of sufficient magnitude to deserve the protections of

due process of law.”

What procedures constitute due process have been

frequently discussed by the United States Supreme Court.

In fact it has concluded that:

“Before a person is deprived of a protected interest, he

must be afforded opportunity for some kind of a

hearing, ‘except for extraordinary situations where

some valid governmental interest is at stake that justifies

postponing the hearing until after the event.” Boddie v.

Connecticut, 401 U.S. 371, 379 [91 S.Ct. 780, 786, 28

L.Ed.2d 113]. ‘While “[mJany controversies have raged

about * * * the Due Process Clause,” * * * it is

fundamental that except in emergency situations (and

this is not one) due process requires that when a State

seeks to terminate [a protected] interest * * *, it must

afford “notice and opportunity for hearing appropriate

to the nature of the case” before the termination

becomes effective.’ Bell v. Burson, 402 U.S. 535, 542[91

S.Ct. 1586, 1591, 29 L.Ed.2d 90]. * * *” Board of

Regents of State Colleges v. Roth, 408 U.S. 564, 570,

fn.7, 92 S.Ct. 2701, 2705, n.7, 33 L.Ed.2d 548 (1972).

33

[1] The notice which must be given must afford the

defendant “a reasonable opportunity to know the claims of

the opposing party and to meet them.” Morgan v. United

States, 304 U.S. 1, 18, 58 S.Ct. 773, 776, 82 L.Ed. 1129

(1938). The requirements of the law are met where the

notice given the defendant is not misleading and apprises

him or her of the issues in controversy. /ntercontinental

Industries, Inc. v. American Stock Exchange, 452 F.2d 935

(Sth Cir. 1971), cert. denied, 409 U.S. 842, 93 S.Ct. 41, 34

L.Ed.2d 81.

[2] From the totality of all of the foregoing narrative, we

conclude that appellant received adequate notice of what

he was expected to defend against and was not subjected to

surprise. He was advised long before the hearing of his right

to the names of witnesses; he did not take advantage of

discovery procedures available. The college policies

delivered to him dwelt on alcohol and drugs. As

appropriately observed by counsel for the Board of

Trustees during the close of the hearing, it is doubtful that

the defendant's evidence would have been changed even if

specific mention of band trips had been earlier made in

connection with charge 7. Clearly apparent in appellant was

a lack of concern about student conduct and an attitude

that they were only behaving in accordance with Fs view of

the community standard.

It is acknowledged that the proceeding from the

beginning was conducted as a contested matter under the

Wyoming Administrative Procedure Act, Section 9—4—

107, W.S.1977, in pertinent part:

“(a) In any contested case, all parties shall be afforded

an opportunity for hearing after reasonable notice

served personally or by mail * * *

“(b) The notice shall include a statement of:

34

“(iv) A short and plain statement of the matters

asserted. If the agency or other party is unable to state

the matters in detail at the time the notice is served, the

initial notice may be limited to a statement of the issues

involved, and thereafter upon application a more

definite and detailed statement shall be furnished.”

As said in Glenn v. Board of County Commissioners,

Sheridan County, Wyo., 440 P.2d 1, 4 (1968):

“* * * The important question is whether or not the

parties had fair notice of the issues involved. * * *”

In Jergeson v. Board of Trustees of School District No. 7,

Sheridan County, Wyo., 476 P.2d 481 (1970), where

complaint was made by the teacher that the board had

failed to give him notice of all the charges against him, this

court approved a general charge as opening up a range of

incidents in which the teacher was involved and pointed out

that the discovery pror>4ure provided in the Wyoming

Rules of Civil Procedur. was available to him and failure

to utilize that means is a significant consideration. In Kuhn

v. Civil Aeronautics Board, 87 U.S. App.D.C. 130, 183 F.2d

839, 841 (1950), fn. 3, the court referred approvingly to the

concept that too much time is spent thinking about the

danger of surprising a party. If his case is prepared at all

adequately, he will not be surprised. Solicitude for him will

simply result in giving him opportunities to delay the case

and harass his opponent, and failure to request a

continuance by rezson of inadequate notice waives any

complaint about its insufficiency.

As recently announced in this court's opinion in Stagner

v. Wyoming State Tax Commission, Wyo., 642 P.2d 1296

(1982), it was stated that the law is elementary that whatever

puts a party on inquiry amounts to “notice,” citing Rodin v.

State, ex rel. City of Cheyenne, Wyo., 417 P.2d 180, 195

(1966). Appellant was put on inquiry when he was advised

35

that names of witnesses would be furnished upon request,

along with being furnished copies of pertinent schoo!

regulations dwelling primarily on the use of alcohol and

drugs.

[3] While appellant claims he was expecting to defend

against charges of homosexuality, he was the only one who

denied such a relationship and his eighteen other witnesses

testified as to other aspects of the charges against him. This

is consistent with the policy of Rule 15(b), W.R.C.P.,’ the

application of which is not inconsistent with application to

an administrative proceeding where no more should be

required. Even if the appellant genuinely felt that he was

surprised by the evidence and it was not reflected in the

charges, failure to request a continuance on the ground of

surprise precludes him from now contending that he was

prejudiced. Batista v. Walter & Bernstein, Fla.App., 378

So.2d 1321, 1323 (19); V. C. Edwards Contracting Co., Inc.

V. Port of Tacoma, 83 Wash.2d 7, 514 P.2d 1381, 1386

(1973): Schultz V. Cally, 528 F.2d 470 (3rd Cir. 1975);

Wright & Miller, Federal Practice and Procedure: Civil §

1495, pp. 480—482.

In Montana Power Co. v. Federal Power Commission,

87 U.S.App.D.C. 316, 185 F.2d 491, 497 (1950), the

petitioner complained that it had not been given notice that

certain issues were in the case until the day the evidence

regarding such issues was offered. The court held the

contention without merit since the petitioner had an

adequate opportunity to obtain whatever continuances

were necessary and had shown no prejudice attributable to

the alledgely defective notice. Proceeding with his defense,

without requesting a continuance waives inadequacy of

notice. Brahy v. Federal Radio Commission, 61 App.D.C.

204, 59 F.2d 879 (1932); and Sisto v. Civil Aeronautics

Board, 86 U.S.App.D.C. 31, 179 F.2d 47, 52 (1949).

36

It must be realized that the basic chargc against appellant

was that his conduct “has been detrimental to the College

and unbecoming your position [as instructor] at the

College.” We consider that appellant's principal defense

went to that contract issue. Another provision of the

contract was that he was subject to termination for failure

to “govern the students.” His position that what the

students did, other than perform well during concerts, was

none of his business and that he did not intend to police

them and be a “gestapo,” coupled with his free spirited view

that the drinking of alcohol and smoking of marijuana is the

community standard, supports the evidence against him

and further takes away any validity and spoils the lack-of-

notice position he takes.

The Board of Trustees of the college would have been

hard pressed to justify their positions as a governing body if

they supported such a position backed up by evidence that

he practiced those views in his role as an instructor. During

their individual public comments made following the

evidence and closing arguments, their obligations in that

regard were expressed: “we all have to * * * protect the

students’ health and welfare who I, as a Board member, am

ultimately responsible for”; “[{t]his is a public institution

founded by tax payer's dollars, and the tax payers expect a

certain standard of behavior which is spelled out in the

policy and procedure cod= that this Board some years ago

formulated and review periodically”; instructors must “set a

tone and example for these people in their charge, whether

they be older or younger, minor or otherwise”; “[m]Juch of

my behavior as a Trustee is guarded. Guarded because |

care about this institution. | expect an instructor to conduct

himself in the same manner”; “I also fee! that the standards

of this community, since I've lived here for forty-two years,

are not to condone the use of alcohol by minors, nor

flagrant use of drugs”; the “best interests [of the students]

37

were not placed within this particular faculty member”;

“has led to the delinquency of a minor * * * and probably

most important, has constituted an unsafe and illegal act on

the part of the Contestant.”

This court has spoken with regard to instructor conduct.

In Tracy v. School District No. 22, Sheridan County, 70

Wyo. 1, 243 P.2d 932 (1950), reh. denied 247 P.2d 153:

“Relative to the duty of a teacher to conduct himself

properly from the moral viewpoint this was also said in

the Baird [v. School Dist. No. 25, Fremont County]

case, 41 Wyo. [451] at page 472, 287 P. [308] at page 315:

“It was said in City of Crawfordsville v. Hays, 42 Ind.

200, that a teacher agrees “by necessary implication,

that while he continues in such employment, his moral

conduct shall be in all respects exemplary and beyond

just reproach.” And not merely good character, but also

a good reputation is essential to the greatest usefulness

in such a position. Freeman v. Inhabitants of Bourne,

170 Mass. 289, 49 N.E. 435, 39 L.R.A. 510. Intrusted as

the teacher is with the education of the young, it

becomes of primary importance that the principles of

right living be by him instilled into them by his example

and by his conduct.’ ;

“Supporting the position thus taken, the following

language was excerpted from the case of School District

v. Maury, 53 Ark. 471, 14 S.W. 669 (41 Wyo. at page

473, 287 P. at page 315, Baird case):

*“This contract necessarily implies that he is competent

to teach properly, and that he will conduct himself in a

moral and skillful manner in discharging his

undertakings. If he cannot, or will not, do either, he

violates the contract, and its termination comes through

his breach. We do not mean to say that every act of

immorality would be a breach of the contract to justify

its termination, but it would be such whenever, from the

38

character or notoriety of the act, it impaired the services

of the teacher in properly instructing or advancing the

pupils. A teacher might properly instruct, yet his

character for morality be so notoriously bad that he

would lose the respect of his pupils and fail to advance

them. He would not then be a competent teacher,

though there were no defect in his learning or facility to

impart it.” ”

“In the text, The Law and Public Education by

Hamilton and Mort it is also said (page 358):

“ ‘The peculiar relationship between the teacher and his

pupils is such that it is highly important that the

character of the teacher be above reproach. It is well

settled, therefore, that a teacher may be dismissed for

immorality or misconduct. The Court of Appeals of

Kentucky has said that both parents and pupils regard

the teacher as an exemplar whose conduct might be

followed by his pupils, and the law by necessary

intendment demands that he should not engage in

conduct which would invite criticism and suspicions of

immorality. (Gover v. Stovall, 237 Ky. 172, 35 S.W.2d

24). Even charges of or reputation for immorality,

although not supported by full proof, might in some

cases, be sufficient ground for removal. Not merely

good character but good reputation is essential to the

greatest usefulness of the teacher in the schools.’ ” 243

P.2d at 936—937.

See also, Jergeson v. Board of Trustees of School District

No. 7, Sheridan County, supra.

It would be improper for us to approve lesser community

standards, with respect to alcoholic beverages and drugs,

than those established by the legislature. Section 12—6—

101(a), (b), (c) and (d), W.S.19778 prohibits the furnishing

of alcoholic beverages to those under 19, prohibits

possession of such beverages by persons under 19 and

39

prohibits aiding and abetting any violation of the section.

The possession and delivery of controlled substances is even

more seriously viewed by the legislature. Sections 35—7—

103l({a) and (c), 35—7—1036, and 35—7—1039,

W.S.1977.9 Marijuana is a Schedule I controlled substance.

Section 35—7—1014(d)(x), W.S.1977. There are involved

federal violations as well. The law sets the standards of the

community, not those who violate it.

We are satisfied that under all of the circumstances of this

case appellant had full notice of what he would be expected

to defend against and was not prejudiced. There was no

abuse of discretion.

We need not specially address appellant's other issues

since they were premised upon a finding of lack of fair

notice; however, they may have been touched on in part

incident to disposition of the first issue.

Affirmed.

“ HOMAS, Justice, specially concurring.

| agree with the result reached by the majority of the court

in this case. There is, however, one aspect of the case about

which I have a special concern. The majority chooses not to

deal with the question of the receipt of evidence concerning

misconduct on the October band tour.

In my view the receipt of such evidence clearly was

erroneous, and administrative agencies, in matters such as

this, should not in any way be encouraged to adopt a

practice of receiving evidence of misconduct which has not

been charged in the notice furnished the respondent. It is my

view that this is a problem which this court dealt with in

Fallon v. Wyoming State Board of Medical Examiners,

Wyo., 441 P.2d 322 (1968), and that the court there reached

the proper conclusion. One of the prerequisites of a fair

hearing is that the accused individual be appraised of the

40

charge which is brought against him so that he may have an

adequate opportunity to defend. The admission into

evidence of misconduct which is not alluded to in the notice,

even though no apparent reliance is placed upon such

evidence in the findings of fact made by the hearing body,

deprives the respondent of an opportunity for a fair

hearing. It well may be that the respondent could refute the

evidence of extraneous misconduct, but did not come

prepared to do so because there was no reason apparent

from the notice to be prepared to meet such information.

I concur in the result reached in this case only because |

am persuaded that the evidence of misconduct on the spring

band tours was overwhelming and that there could have

been no prejudice to Dr. White because of the admission of

information relating to the October band tours. Even Dr.

White conceded most of what occurred with respect to the

spring band tours, and given that state of the record the

board of trustees had no alternative but to dismiss him. In

my view, however, administrative agencies need to be fairly

cautioned that it is far better not to admit evidence of

extraneous misconduct which has not been noticed in order

to preserve the legal integrity of the proceedings.

ROSE, Chief Justice, dissenting.

I dissent because I cannot agree that appellant was

granted his rights of procedural due process.

In my opinion, the appellant was not properly notified by

the board with respect to the issues concerning which he was

expected to defend himself at his termination hearing. In

concluding that the notice was adequate, the majority of the

court establish a standard that the notice requirements of §

9—4— 107(a) and (b), W.S.1977, were satisfied by whatever

places a party on “inquiry.” The majority say that once the

party has been placed upon “inquiry,” the burden then

shifts to him or her to ferret out the essence and the details

41

of the charges. The court goes on to say that the appellant

here did not satisfy this obligation in this case. For me, the

holding flies in the face of past standards established by this

court and | am therefore compelled to express my

disagreement.

As noted by the majority, the central issue raised by

appellant concerned his claim that the board had failed to

adequately notify him of the charges upon which it relied in

terminating his contract of employment. This issue is not

new to this court.

In Glenn v. Board of County Commissioners, Sheridan

County, Wyo., 440 P.2d | (1968), when confronted with a

claim of insufficient notice, we said:

“The important question is whether or not the parties

had fair notice of the issues involved.” (Emphasis

added.) 440 P.2d at 4.

After posing the question, we held that the failure of the

appellants to raise such an issue prior to or at the hearing

before the board, precluded further review of their

contentions.

We were faced with similar questions in Jergeson v.

Board of Trustees of School District No. 7, Wyo., 476 P.2d

481 (1970). There we upheld a notice which had

communicated the charges supporting the board's

institution of termination proceedings in a very general sort

of way. However, the holding in that case revolved around

the failure of appellant to request a more specific or detailed

statement from the administration.

Then in Board of Trustees, Laramie County School

District No. 1 v. Spiegel, Wyo., 549 P.2d 1161 (1976), we

once again turned our attention to a challenge to the notice

given to a teacher faced with termination proceedings. In

Spiegel, the appellee was charged by the notice with

42

employing teaching methods which were in conflict with the

“philosophy” of the administration and board. The teacher

asked the board to give him a more definite and detailed

statement concerning the facts which were known to the

board and which supported the charge, and this request was

denied. In affirming the district court’s reversal of the

board’s action, we held, as a matter of statutory and

constitutional law, that the appellee had a right to more

detail and the denial of appellant’s motion by the board

required reversal. We said:

“The motion should have been granted. The appellee

had a statutory and constitutional right to have it

granted. For the contestant to have to defend against

these vague and indefinite charges was a denial of not

only his rights under the statute, but also a

constitutional denial of due process.” 549 P.2d at 1171.

Finally, in Powell v. Board of Trustees, Crook County

School District No. 1, Wyo., 550 P.2d 1112 (1976), we were

faced with a situation where the appellant had been

dismissed by the board on charges with respect to which he

had received no notification. Before the hearing, appellant

had been charged with violating various policies having to

do with student discipline. However, after the hearing, the

board based its decision on appellant's inability to control

student conduct. In reversing the board’s decision we said:

“In order to satisfy the minimum rights of the appellant

he must have had adequate, specific notice of those

things with which he was being charged. This is a due-

process guarantee which allows him to prepare for his

hearing.

“We said in Glenn v. Board of County Commissioners,

Sheridan County, Wyo., 440 P.2d 1, 4 (1968)

“* . . The important question is whether or not the

parties had fair notice of the issues involved. . .”

43

“Did Powell have fair notice that he could be found

guilty of a student-discipline inadequacy (inability to

control conduct), concerning which there had been no

charges made, even though he were to successfully

defend against the charge of failure to follow student-

disciplinary policies of the Board? We hold that he did

not.

“What is ‘fair notice’ under Glenn v. Board of County

Commissioners, supra, as applied to this case? If Mr.

Powell was going to be required to defend a student-

disciplinary charge, it was necessary to specifically

inform and notify him as contemplated by § 9—

276.25(a) and (b)(4) and § 21.1— 160(b), supra. He hada

right to believe that the only student-discipline

complaint was embraced in the charge of not following

the Board’s discipline policy. According to the manner

in which the issues were framed, there is no reason to

believe he should have guessed that there might be

additional dissatisfaction with his student-disciplinary

methods over and above and outside the charge that he

had failed to follow the District’s student-disciplinary

policy.” 550 P.2d at 1117.

It is clear from the decisions that, as a matter of right, the

appellant was entitled to specific notice of those things with

which he was being charged, and, upon request for a more

definite' statement, the agency was required to

communicate to appellant specific information supporting

any claimed improprieties. With this standard in mind, |

undertake a review of the relevant matters and will express

my conclusions as to why I believe appellant was denied due

process of law.

1 will limit my inquiry to Charge No. 7 which was

communicated to appellant on August 29, 1980. This

charge stated:

44

“7. Soliciting and participating in relationships with

students in a manner which is violative of generally

accepted community standards.”

The reason for limiting inquiry to this charge is because, in

dismissing appellant for his conduct on school band trips,

the board relied on Charge No. 7 which had been included

within the Notice of Reasons for Termination

Recommendation and Notice of Hearing. Thus, the board

determined that appellant's alleged improper conduct was

violative of “generally accepted community standards.” So

the real question, for me, concerns whether or not appellant

was given adequate notice by the board to the effect that he

would be expected to defend against allegations

surrounding his conduct on school band trips under Charge

No. 7. I conclude that he was not and that the board's failure

to respond to his demands for a more detailed statement

was reversible error under Spiege/ and Powell, supra.

As noted previously, appellant was sent the Notice of

Termination on August 29, 1980. Included within that

notice was Charge No. 7. After receiving the above

document, appellant requested that Dr. Slafter clarify and

delineate the student-teacher relationships that he had

allegedly violated. This request was forwarded on

September 15, 1980. On that same day, Dr. Slafter sent

appellant a response which indicated that the

administration had various letters from students, including

the earlier one attached to the original notice, which

indicated that appellant had solicited and participated in

homosexual relationships with his students. At this point,

on the administration's own admission, the charge relating

to impermissible relationships violative of community

standards (Charge No. 7) was narrowed to issues

surrounding the alleged homosexual preference of the

appellant. No mention or reference was made to any

conduct on band trips. Notwithstanding this, on September

45

18, 1980, appellant once again requested further

clarification concerning specific college policies on student-

teacher relations which the administration believed he had

violated. He received no response to this request.

Up to that time, the appellant had received no specific

information concerning alcohol or drug use except for

various copies of college regulations regarding the use of

alcohol and drugs in college facilities. No specifics

regarding appellant's alleged activities with drugs or

alcohol were ever communicated to him even though he

made two requests for further clarification. The only

specific notice he ever received concerning Charge No. 7

had to do with alleged homosexual relationships with

students.

Given these facts, I can reach no other conclusion but

that appellant was never given adequate notice of the

specific charges which formed the basis of the board's

decision, even though he had made several requests for that

information. Under Spiegel, supra, and Powell, supra, the

facts clearly required reversal of the board’s decision since

appellant’s statutory (§ 9—4—107(b)(iv)) and

constitutional due process rights were violated.

Specification of the issues is one of the basic elements oi

fair procedure and fairness dictates that a party to a

contested case be appraised of the facts beforehand.

Schwartz, Administrative Law, § 97, p. 274 (1976). Here,

the board and college administration did not act fairly, and

even if the evidence, in the final analysis, clearly supported

appellant's firing, the fact that appellant's rights to due

process were violated should not be ignored. In my

judgement, the majority opinion disregards our prior case

law which is directly in point, solely because of the

overwhelming evidence actually supporting the board's

decision. I cannot, however, support their conclusions since

46

I am convinced the procedures utilized to reach that result

violated appellant's minimal rights to due process of law.

For these reasons, I would have reversed.

FOOTNOTES — MAJORITY OPINION

'During the course of this opinion we will use the term appellee even

though the caption of the case shows the Board of Trustees and its

chairman as appellees; however, they did not prosecute the case against

appellant. It was prosecuted in the name of the president of the college,

with his separate counsel. The Board had its own counsel present in an

advisory capacity. The record is explicit in making it clear that the

Board at no time took part in any investigation or the prosecution and

was kept sanitized and apart so as to perform its quasijudicial function

in a completely disinfected atmosphere, avoiding the taint of being

prosecutor and judge condemned by this court in Monahan v. Board of

Trustees of Elementary School District No. 9, County of Fremont,

Wyo., 486 P.2d 235 (1971).

2Same as contract language.

This objection is not an issue on appeal, so it will not be considered.

Even if error, which we do not decide, it would be harmless in the light

of the abundance of evidence of condoned student conduct on the

previous trips before August 29, 1980. Rule 7.04, W.R.A.P. No

substantial rights were affected.

‘The great lexicographer Webster provides these definitions:

Euphemistic—“relating to or of the nature of euphemism:

containing a euphemism.”

Euphemism—“!: the substitution of an agreeable or inoffensive

word or expression for one that is harsh, indelicate, or otherwise

unpleasant or taboo: allusion to an offensive thing by an inoffensive

expression—contrasted with dysphemism. 2: a polite, tactful, or

less explicit term used to avoid the direct naming of an unpleasant,

painful, or frightening reality (as pass away for die: underprivileged

for poor).”

47

‘Some of appellant’s student testimony was revealing. One

proclaimed alcohol a great relaxant following a performance to

“mellow out” from the “hyped up” feeling developed during a concert.

Another minor at the time of the tour recalled packing the beer in snow

and ice in the bathtub to keep it cool over night. Of the fifteen to

seventeen on tour, only two or three did not participate in drinking or

smoking marijuana. A high school student on one of the tours testified

that “[d)rinking alcohol and maybe smoking marijuana among students

was affluent [sic]. It was all over.”

*Section 9—4— 107(g) and (h), W.S.1977:

“(g) Application of civil rules.—{i) In all contested cases the taking

of depositions and discovery shall be available to the parties in

accordance with the provisions of Ruies 26, 28 throught 37

(excepting Rule 37(b)(1) and 37(b\(2)(D) therefrom) of the

Wyoming Rules of Civil Procedure in effect on the date of the

enactment of this act [§§ 9—4—101 to 9—4—115] and any

subsequent rule amendments thereto. Provided, however, all

references therein to the ‘court’ shall be deemed to refer to the

appropriate ‘agency’, all references to the use of the subpoena

power shall be deemed references to section 7(c) [subsection (c) of

this section]; all references to ‘trial’ shall be deemed references to

‘hearing’, all references to ‘plaintiff shall be deemed references to ‘a

party.”

“(ii) If a party or other witness refuses to be sworn or refuses to

answer any question after being directed to do so by the agency in

which the action is pending, the refusal to obey such agency order

shall be enforced in the same manner as is provided in section 7(c).

“(h) Discovery provisions —The agency in a contested case shall be

subject to the discovery provisions of this section. Provided,

however, neither the agency, nor any member, officer or employee

shall be required to disclose information which is confidential or

privileged under the law and provided no member of the agency

shall be compelled to testify or give a deposition in a contested case.

Provided, further, that evidence and discovery sought from the

agency shall be by written application for same. In the event the

agency refuses to furnish same in whole or in part the aggrieved

party may apply to the district court for the district in which the

hearing, deposition or other proceeding is being or is to be

conducted for an order directed to the agency compelling

discovery. The court shall enter such order as may be appropriate.

48

The procedure provided for in this subsection for obtaining

discovery from the agency shall be exclusive.”

"Rule 15(b), W.R.C.P.:

“When issues not raised by the pleadings are tried by express or

implied consent of the parties, they shall be treated in all respects as

if they had been raised in the pleadings. Such amendment of the

pieadings as may be necessary to cause them to conform to the

evidence and to raise these issues may be made upon motion of any

party at any time, even after judgment; but failure so to amend does

not affect the result of the trial of these issues. If evidence is

objected to at the trial on the ground that it is not within the issues

made by the pleadings, the court may allow the pleadings to be

amended and shall do so freely when the presentation of the merits

of the action will be subserved thereby and the objecting party fails

to satisfy the court that the admission of such evidence would

prejudice him in maintaining his action or defense upon the merits.

The court may grant a continuance to enable the objecting party to

meet such amendment.”

‘Section 12—6— 101(a) through (d), W.S.1977:

“(a) Every person who sells, furnishes, gives or causes to be sold,

furnished or given away any alcoholic liquor or malt beverage to

any person under the age of nineteen (19), who is not his legal ward,

medical patient or member of his own immediate family, is guilty of

a misdemeanor.

“(b) Any person under the age of nineteen (19) who has any

alcoholic or malt beverage in his possession or who is drunk or

under the influence of alcoholic liquor, malt beverages or drugs on

any street or highway or in any public place is guilty of a

misdemeanor. This subsection shall not apply to possession of

alcoholic or malt beverages by a person under the age «* nineteen

(19):

“(i) When making a delivery of alcoholic or malt beverages

pursuant to his employment; or

“(ii) Who is in the physical presence of his parent or legal

guardian.

“(c) Any person under the age of nineteen (19) who attempts in any

manner to purchase alcoholic or malt beverages, who falsifies any

identification or uses any false identification in order to obtain

alcoholic or malt beverages is guilty of a misdemeanor.

49

“(d) Any person who violates this section, or aids, abets or incites

any violation hereof, is guilty of a misdemeanor and upon

conviction shall be fined not more than one hundred dollars

($100.00), imprisoned for not more than six (6) months, or both.”

*Section 35—7—1031(a) and (c), W.S.1977:

“(a) Except as authorized by this act [§§ 35—7— 1001 to 35—7—

1055], it is unlawful for any person to manufacture, deliver, or

possess with intent to manufacture or deliver, a controlled

substance. Any person who violates this subsection with respect to:

“(i) A controlled substance classified in Schedule | or II which isa

narcotic drug, is guilty of a crime and upon conviction may be

imprisoned for not more than twenty (20) years, or fined not more

than twenty-five thousand dollars ($25,000.00), or both;

“(ii) Any other controlled substance classified in Schedule I, Il or

III, is guilty of a crime and upon conviction may be imprisoned for

not more than ten (10) years, fined not more than ten thousand

dollars ($10,000.00), or both;

“(iii) A substance classified in Schedule IV, is guilty of a crime

and upon conviction may be imprisoned for not more than (2)

years, fined not more than two thousand five hundred dollars

($2,500.00), or both;

“(iv) A substance classified in Schedule V, is guilty of a crime and

upon conviction may be imprisoned for not more than one (1) year,

fined not more than one thousand dollars ($1,000.00), or both.

* * * > . *

“(c) It is unlawful for any person knowingly or intentionally to

possess a controlled substance unless the substance was obtained

directly from, or pursuant to a valid prescription or order of, a

practitioner while acting in the course of his professional practice,

or except as otherwise authorized by this act [§§ 35--7—1001 to

35—-7— 1055]. Any person who violates this subsection is guilty of a

misdemeanor and may be imprisoned in the county jail not more

than six (6) months and fined not more than one thousand dollars

($1,000.00). Any person convicted for a third or subsequent offense

under this subsection shall be imprisioned in the state penitentiary

for not more than five (5) years, and fined not more than five

thousand dollars ($5,000.00), or both.”

Section 35—7— 1036, W.S.1977:

“Any person eighteen (18) years of age or over who violates section

3i(a) [§ 35—-7—1031(a)] by distributing a controlled substance

50

listed in Schedules | or I which is a narcotic drug to a person under

eighteen (18) years of age who is at least three (3) years his junior is

punishable by the fine authorized by section 31(a)i) [§ 35—7—

1031(ai)], by a term of imprisonment of up to twice that

authorized by section 31(a)(i), or both. Any person eighteen (18)

years of age or over who violates section 31(a) by distributing any

other controlled substance listed in Schedules I, II, Ill, to a person

under eighteen (18) years of age who is at least three (3) years his

junior is punishable by the fine authorized by section 31(a)ii) [§

35—7— 1031(a){ii)], by a term of imprisonment up to twice that

authorized by section 31(a)ii), or both. Any person eighteen (18)

years of age or over who violates section 31(a) by distributing any

controlled substance listed in Schedule IV to a person under

eighteen (18) years of age who is at least three (3) years his junior is

punishable by the fine authorized by section 31(a)iii) [§ 35—7—

103 1(a)(iii)}, by a term of imprisonment up to twice that authorized

by section 31(a)(iii), or both. Any person eighteen (18) years of age

or over who violates section 31(a) by distributing any controlled

substance listed in Schedule V toa person under eighteen (18) of age

who is at least three (3) years his junior is punishable by the fine

authorized by section 31(a)iv)[§ 35—7— 103 1(a)iv)], by a term of

imprisonment up to twice that authorized by section 31(a){iv), or

both.”

Section 35—7—-1039, W.S.1977:

“Any person who knowingly or intentionally uses or is under the

influence of a controlled substance listed in Schedules |, II or III

except when administered or prescribed by or under the direction of

a licensed practitioner shall be guilty of a misdemeanor and shall be

punished by imprisonment in the county jail not to exceed ninety

(90) days or a fine not to exceed one hundred dollars ($100.00), or

by both.”

FOOTNOTE — DISSENTING OPINION

'As the majority opinion notes, § 9—4— 107(a) and (b) provides the

standards applicable to giving a party notice in contested cases. That

section reads in pertinent part:

“(a) Notice to be given; service of notice.—In any contested case, all

parties shall be afforded an opportunity for hearing after

reasonable notice served personally or by mail. Where the

indispensable and necessary parties are composed of a large class,

51

the notice shall be served upon a reasonable number thereof as

representatives of the class or by giving notice by publication in the

manner specified by the rules or an order of the agency.

“(b) Statement in notice.—The notice shall include a statement of:

“(i) The time, place and nature of the hearing;

“(ii) The legal authority and jurisdiction under which the hearing

is to be held;

“(iii) The particular sections of the statutes and rules involved;

“(iv) A short and plain statement of the matters asserted. If the

agency or other party is unable to state the matters in detail at the

time the notice is served, the initial notice may be limited to a

statement of the issues involved, and thereafter upon application a

more definite and detailed statement shall be furnished.”

IN THE SUPREME COURT, STATE OF WYOMING

APRIL TERM, A.D. 1982

JOHN WHITE,

Appellant

(Petitioner),

v.

BOARD OF TRUSTEES OF WESTERN

WYOMING COMMUNITY COLLEGE

DISTRICT and MR. RON VOSIKA, in his

official capacity as President of the Board of

Trustees,

No. 5601

Appellees

(Respondents).

ORDER DENYING REHEARING

After careful consideration, it is

ORDERED that appellant's Petition for Rehearing be,

and hereby is, denied.

August 9th, 1982. By the Court

wee eee ee eee eee ee”

/s/ R R Rose Jr.

ROBERT R. ROSE, JR.

Chief Justice

52

APPENDIX B

STATE OF WYOMING ) IN THE DISTRICT COURT

)ss.

COUNTY OF SWEETWATER) THIRD JUDICIAL DISTRICT

JOHN WHITE,

Petitioner,

= Civil Action No. 5052

)

)

)

)

)

)

BOARD OF TRUSTEES OF WESTERN 1)

WYOMING COMMUNITY COLLEGE )

DISTRICT and MR. RON VOSIKA, )

in his official capacity as )

President of the Board of )

Trustees, )

)

)

Respondents.

ORDER DENYING RELIEF REQUESTED

BY PETITION FOR REVIEW

THIS MATTER having come before the Court upon

Petition for Review of Administrative Action pursuant to

the provisions of the Wyoming Rules of Appellate

Procedure and the Wyoming Administrative Procedures

Act; said Petition for Review seeking relief from the order

of the Board of Trustees of Western Wyoming Community

College District, State of Wyoming, entered as written

Findings of Fact and Conclusion of Law on February 12,

1981, and reflecting the Board’s decision announced on

December 13, 1980, which order and decision terminated

the teaching contract of Petitioner; and the Court having

reviewed the record on appeal and the briefs of all parties,

53

and being fully advised in the premises; the Court does

hereby find and conclude as follows:

1. That the written notice to Petitioner on August 29,

1980, listing seven allegations against him and

incorporating written regulations and policies of the

College, was adequate notice to Petitioner of the grounds

for his termination.

2. That Petitioner knew, or should have known, that any

violations of liquor laws or of college policies relating to the

use of liquor or drugs could be used against him as grounds

for termination.

3. That college policies regulating certain conduct “on

school premises” and at “college sponsored or supervised

functions” would regulate such conduct on a school bus

under the circumstances of this case.

4. That “generally accepted community standards”, in

the context of the charges against Petitioner, are established

by the prohibitions set forth in the laws of Wyoming as

enacted by the legislature.

5. That the charge of violating community standards was

neither too vague nor ambiguous, nor did it fail to properly

warn him of the charges against him, nor of the evidence

which he might expect to be used against him.

6. That Petitioner was not denied due process of law.

7. That Petitioner took no action to avail himself of the

numerous discovery procedures granted him by Wyoming

law and Wyoming Rules of Civil Procedure and may not

now blame anyone but himself for his failure to do so.

8. That Petitioner was given a fair and adequate

opportunity to voir dire board members for the purpose of

demonstrating prejudice against him.

9. That the Board of Trustees acted impartially.

54

10. That neither the Board’s actions nor its decision were

arbitrarv or characterized by an abuse of discretion.

11. That Petitioner's employment was lawfully

terminated on December 13, 1980.

12. That the findings of fact of the Board of Trustees are

supported by substantial evidence.

13. That the decision of the Board of Trustees is in

conformity with law and the Board’s own announced

policies and regulations.

IT IS THEREFORE ORDERED, ADJUDGED AND

DECREED that the findings and order of the Board be,

and “hey are hereby, sustained, and the prayer of Petitioner

that the Court order his reinstatement as a teacher at

Western Wyoming College, that the Court order Western

Wyoming College to pay Petitioner his back pay, and that

Petitioner receive his costs and attorneys’ fees herein be,

and it is hereby, denied.

DATED this 20th day of August, 1981.

/s/ KENNETH G. HAMM

JUDGE

55

APPENDIX C

BEFORE THE BOARD OF TRUSTEES

OF

WESTERN WYOMING COMMUNITY COLLEGE

STATE OF WYOMING

In the Matter of Employee )

)

JOHN WHITE, )

)

)

Contestant.

FINDINGS OF FACT AND CONCLUSION OF LAW

This matter having come on for hearing on the 12th day

of December, 1980 and continuing thru the 13th day of

December, 1980 before the Board of Trustee of Western

Wyoming Community College (the “Board”) and the Board

having heard the evidence and the argument of counsel

finds as follows:

1. John White is an instructor at the Western Wyoming

Community College (the “College”) pursuant to his

employment contract with the college dated March 27,

1980.

2. John White was notified in writing on August 29, 1980

that the president of the college, Bert S. Slafter, would

recommend termination of his employment with the college

for the reasons set forth.

3. John White on November I1, 1980 requested a

hearing before the board for the purpose of contesting the

recommendation of the president that his employment be

terminated.

56

4. The Board notified John White thru his attorney that

a hearing would commence on December 12, 1980 at 10:00

o'clock A.M., and that a pre-hearing conference would be

held on December 12, at 9:00 o'clock A.M.

5. The hearing was commenced pursuant to the

authority and jurisdiction provided to the board by the

Wyoming Administrative Procedure Act and by the filing

of rules of the college with the Secretary of State, and the

hearing was conducted pursuant to the Wyoming

Administrative Procedure Act and the rules of practice

governing hearings on file with the Secretary of State.

6. John White is the leader of and instructor of a rock

band sponsored by the college, pursuant to the terms of his

employment with the college and as part of his employment

responsiblities with the college.

7. The rock band consists of students of the college who

are enrolled in the music department among others.

8. The rock band makes several road trips during each

school year for the purpose of performing in the name of the

college.

9. John White is in charge of the students, is the person in

authority, and is the representative of the college on these

trips.

10. Some of the students who play instruments in the rock

band on these trips are under nineteen years of age.

11. The vehicle used for transportation on these trips are

owned by the college.

12. In the spring of 1980 while ona trip with the band, and

while in the college owned vehicle, John White consumed

alcohol and marijuana and permitted his students including

some who were minors to consume alcohol and marijuana.

57

13. John White purchased alcohol for students while on

trips with the band and permitted the consumption of this

alcohol while in the college owned vehicle.

14. College policy is not to permit alcohol and marijuana

consumption on college sponsored outings such as the rock

band trips.

15. Generally accepted community standards do not

permit the consumption of alcohol by minors or the

consumption of marijuana.

16. John White is guilty of misconduct while on the rock

band trips and has engaged in improper student teacher

relationships as a result of his conduct on the rock band

trips.

17. John White is in breach of his employment contract.

18. John White is hereby dismissed as a teacher and

ins.ructor at the college effective December 13, 1980, for

good cause.

The board unanimously adopts the foregoing as

accurately reflecting the reasons for its decision in this

hearing and as accurately setting forth its ruling and final

order.

12 day of February, 1981

/s/ RON VOSIKA

Ron Vosika

President of the Board Trustees

of Western Wyoming Community College

ATTEST:

/s/ DEBBY L McDONOUGH _

Secretary