Appendix — West v. Buffalo Center-Rake School District ex rel. Board of Directors

~,

93-31.

a* 4

' 4 >

JUL 9 1993

& iw

No. ; |

1 OFFICE Pit C:

- an ee

7 . SAD. 4a Se eS ee

THE SUPREME COURT OF THE UNITED STATES

October Term, 1993

DON N. WEST,

Petitioner,

vs.

BUFFALO CENTER-RAKE

SCHOOL DISTRICT, BY ITS

BOARD OF DIRECTORS,

Respondent.

PETITION FOR WRIT OF

CERTIORARI FROM THE COURT

OF APPEALS OF IOWA

PETITION FOR WRIT OF CERTIORARI

(Volume IT)

MARK S. SOLDAT

COUNSEL OF RECORD

714 East State Street

Algona, Iowa 50511

(515) 295-9463

MARY JANE WHITE

405 West Main Street

Waukon, Iowa 52172

(319) 568-3551

ATTORNEYS FOR DON N. WEST

DON WEST,

Defendant.

Hearing was held in the above-

captioned matter pursuant to the

provisions of Iowa Code Section 279.24 on

whether or not Don West’ should be

dismissed as the Superintendent of the

Buffalo Center-Rake Community School

District. The hearing consisted of six

days of testimony held between the dates

of March 14, and March 30, 1990, at three

different locations. These proceedings

were initiated on January 10, 1990, when

the Buffalo Center-Rake Community School

District voted to consider termination of

the employment contract of Don West.

Notice of Consideration of Termination

was then served upon Superintendent West

on January 30, 1990, and Superintendent

84

West promptly sought hearing before an

Administrative Law Judge. Pursuant

thereto, evidentiary hearings were held

on March 14, and March 15 at the

Winnebago County Courthouse in Forest

City, Iowa, on March 22 and March 23 at

the Kossuth County Courthouse in Algona,

Iowa, and on March 29 and March 30 at the

Hancock County Courthouse in Garner,

Iowa. The proceedings were held before

the undersigned Administrative Law Judge

who, at the conclusion of the evidentiary

hearing, requested that the parties

submit Briefs and Arguments and any

Proposed Decisions by Wednesday, April 4,

1990. The undersigned, having heard the

evidence, and having reviewed the parties

Briefs, Arguments and Proposed Decisions

hereby enters the following Findings of

Fact and Proposed Decision.

FINDINGS OF FACT

85

Don West is the Superintendent of

the Buffalo Center~Rake Community School

District and has been since i981. Prior

to serving as Superintendent at Buffalo

Center-Rake, he was the Principe: at the

school for approximately 12 years. In

addition to his present Superintendency

duties at Buffalo Center-Rake, he also

serves as Superintendent of the Titonka

School District. Buffalo Center-Rake

Community School is presently involved in

a whole grade sharing program with three

other school districts, namely Lakota,

Titonka and Thompson. The shared high

school program is known as North Iowa

High School. Buffalo Center-Rake

Community School District has

approximately 400 students.

On January 10, 1990, near the end of

the meeting of the Buffalo Center-Rake

Community School Board, the School Board

86

voted five to one, with one abstention,

to consider termination of Superintendent

West’s contract as Superintenuent of the

Buffalo Center-Rake Community School

District. On January 30, 1990,

Superintendent West was served with

Notice of Consideration of Termination

and pursuant to Iowa Code Section 279.24,

Superintendent West requested a hearing

before an Administrative Law Judge. The

undersigned Administrative Law Judge was

selected and extensive discovery was

conducted by each party as is shown by

the file herein. Depositions were taken,

Interrogatories were served and answered

and documents were produced in response

to Request for Production of Documents.

In light of the extensive discovery and

to allow time in which to complete the

discovery, each party agreed orally and

in writing to an extension of the 30 day

87

time period in which a hearing is to be

held as provided for in Iowa Code Section

279.24.

The Board’s Notice of Consideration

of Termination of Administrator’s

Contract details 10 reasons why the board

voted to consider termination of

Superintendent West’s contract.

Discovery has elicited 38 specific

incidents that comprise the 10 reasons

alleged.

Many if not most of the points of

dissatisfaction over Superintendent West

have to do with what can best be

characterized as his "management style"

which is firm and involved in that he

exercises a high degree of control over

virtually all aspects of the school

operation. Such a style of management or

administration was typical in years gone

by and remains typical in some small

88

school systens. As school organizations

have become hore sophisticated, however,

and as schoc] boards have become more

involved, a natural tension develops

within the school itself over

jurisdiction and areas of responsibility

and between administration and school

board over krowledge and accountability.

The dispute at Buffalo Center-Rake seems

to epitomize, to a significant extent,

the problems that can arise from such

developments.

An lllustration of the

Superintendent’s administrative style is

his desire to limit staff and

administrative contact with the School

Board. Accordingly, Superintendent West

has, over a period of years, directed the

School Board Secretary not to attend

Board meetings or take Board minutes,

instructed Principal Fahlk and Principal

89

Monaghan not to attend Board meetings or

to have any contact with the School

Board, and discouraged staff members from

attending Board meetings. Another

illustration of the Superintendent’s firm

control and firm management style is the

matter of evaluations of teachers and

Superintendent West’/s control over

Principal Monaghan‘’s evaluation of those

teachers. I do not find that

Superintendent West ever told Principal

Monaghan to falsify oF fabricate an

evaluation on any teacher. It may be

that he said to give them bad evaluations

but it’s clear that he also told Monaghan

the evaluation should stand up in court

which means, in other words, that they be

truthful and provable. This further

illustrates, however, the management and

leadership style of Superintendent West

of running the entire school system.

eee

90

Rather than allowing his Principal to

conduct an independent evaluation,

Superintendent West felt it was

appropriate and necessary for him to get

directly involved in matters that should

have been delegated to and dealt with by

others.

The NCA report was favorable in many

respect toward the school yet concerns

were expressed in the areas of

administration, communication, management

style and staff morale. Mr. Mullenberg,

the chairman of the evaluation committee,

characterized Superintendent West’s

Management style as a "firm hand" style

and the report indicated that it was

unrealistic to continue that style. The

report further indicated that

Superintendent West needed to delegate

more responsibility and that the High

School Principal should have more input

ne

91

in many areas including staff selection.

The report also indicated that staff

members were confused as to where

budgeting requests were to be directed

and as a consequence, many instructors

would bypass’ the Principal and go

directly to the Superintendent. The

report further noted that staff members

felt a lack of input and lack of

communication with the administration and

that the consequence of that would be

staff morale problems.

There has been a significant

breakdown in the communication and trust

between Superintendent West and the

Buffalo Center-Rake Community School

Board. Each School Board member who

testified at the hearing attested to such

a breakdown or lack of trust between the

Board and the Superintendent. This has

occurred gradualiy over the last two

92

years approximately and has culminated in

the present proceedings. Some of these

problems can be attributed as much to the

School Board as it can to Superintendent

West. For example, the School Board

complains in these proceedings about the

declining financial condition of the

School District. There is a declining

financial condition within the School

District which has been caused by a

recent history of deficit spending. The

School Board must share a portion of the

blame for this deficit spending inasmuch

as they retain the ultimate control over

the school budget with certain

limitations. Many of the expenditures

incurred by the School District over the

past few years have come as a result of

direct Board action. The Board

complains, however, that Superintendent

West recommended many of those

93

expenditures, which is true. However,

despite the Superintendent’s

recommendation, the Board always retains

the right to reject such recommendations.

Despite the School Board’s right to

reject certain proposed expenditures, Yh

is not unreasonable for a School Board to

look to and expect the Superintendent to

be cautious in recommending new spending

proposals to the School Board.

Furthermore, it is not unreasonable for

the School Board to expect the

Superintendent to make specific

recommendations to the School Board in

reversing the deficit spending. School

Board members are frequently not as

knowledgeable about potential school

income resources and potential school

economies as would be a professional

administrator such as Superintendent

West. Many Superintendents will

94

affirmatively make specific proposals and

recommendations to the School Board about

income and/or expenses withcut waiting

for the School Board to give directives

to the Superintendent for such

recommendations. In the instant case,

Superintendent West had made the School

Board aware of the declining financial

condition and it is clear that the School

Board Knew or should have known of the

declining financial condition. There is

nothing in the record to indicate that

the School Board specifically directed

Superintendent West to make specific

recommendations and proposals to the

Board on how to deal with the declining

financial situation. On the other hand,

however, there is nothing in the record

to indicate that Superintendent West ever

took the initiative to undertake specific

studies or to make any specific proposals

95

and recommendations to the Board as to

how to deal with the financial situation.

The whole grade sharing arrangement

that Buffalo Center is a member of has

also been a source of miscommunication

and misunderstanding between the Board

and the Superintendent. This four way

whole grade sharing arrangement may be

the only such arrangement in Iowa. The

record is clear that Superintendent West

has been very instrumental in

implementing this arrangement and has

spent a significant amount of time not

only negotiating this agreement but also

in implementing same. The time spent in

such an arrangement as well as the time

that Superintendent West has spent in

serving as Superintendent of Titonka has

reduced the time that he traditionally

would have spent at Buffalo Center and

has interfered with his ability to

EE ———LrLrrrs—S—S

96

function efficiently and effectively as

Superintendent at Buffalo Center-Rake.

These new time constraints have pressured

Superintendent West to make a change in

how he functions as an administrator

which apparently has been hard to do.

For example, Superintendent West has

found it difficult if not impossible to

delegate certain menial tasks such as

collecting and sorting mail. Delegation

should also be of administrative

responsibilities to his High School

‘Principal, Allyn Monaghan, which is

another source of considerable tension

within the School District. The changing

times, including a more complex set of

rules for operating school systems,

demand that Superintendent West change

his "management style" which he has

struggled with.

The level of communication between

97

Superintendent West and High School

Principal Allyn Monaghan is virtually

nonexistent and has a detrimental impact

on the operation of the Buffalo Center-

Rake Community School District. The

report of April, 1988, by the North

Central Association evaluation team

comments about the relationship between

the Superintendent and High’ School

Principal and _ the potential impact

throughout the system. Some of the Board

members became aware that Superintendent

West was communicating with High School

Principal Monaghan almost exclusively by

written notes and also learned of

Principal Monaghan‘s frustration over

severe limitations on his authority to

act as Principal. In light of the NCA

report and the complaints by Principal

Monaghan, Erling Aalgaard and Board

member Gene Brass visited with

98

Superintendent West in November of 1988

and expressed strong concern about that

relationship. Superintendent West

indicated that he would try to do better.

In the course of learning more about the

poor relations between the Superintendent

and Principal, the Board also learned

that Superintendent West had directed

Principal Monaghan, as he had with prior

High School Principal Fahlk, to not

attend any meetings of the Buffalo

Center-Rake School Board and not to have

any contact with any of the School Board

members. When Principal Monaghan served

as Athletic Director, he was limited in

his ability to purchase athletic

equipment and had no keys to athletic

facilities or to the restrooms.

The lack of communication between

the Superintendent and Principal was such

that in September of 1988 the School

99

Board adopted a team management policy

which was received into the record. It’s

obvious from this record that the team

management policy was not followed by

Superintendent West as it relates to

Principal Monaghan. Monaghan had little

if any input on interview of potential

employees, equipment purchases, finances,

teacher complaints, school decisions,

etc. These matters were also noted in a

general sense by the NCA report.

The incident with the Wirtjes family

also deals with the relations between the

Principal and the Superintendent. The

record does not clearly establish that

Superintendent West directly intervened

on the part of the Wirtjes boy and at the

request of the Wirtjes family. It does

reveal, however, that an overagressive

parent insulted the High School Principal

by calling him and telling him that they

eel

100

did want him to be Principal of their

child and then calling Superintendent

West and telling superintendent West that

Monaghan would not be their child’s

Principal. By not explaining the "facts

of life" to this parent, Superintendent

West’s actions did have the effect of

undercutting the Principal and making the

Principal feel unsupported by the

Superintendent. It appears that

Superintendent West accepted the

statement from the parent and reiterated

such a position to the Principal without

| giving the Principal any support or

encouragement. A Similar problem

developed over the suspension of Alitza

Julius by Principal Monaghan. The record

shows that Principal Monaghan suspended

her for three days at the end of the 1987

calendar school year. The record does

not establish whether the Board policy

101

was correctly followed in this case by

any of the parties involved but it does

reveal that the affected family went to

Superintendent West to undo the

suspension implemented by Principal

Monaghan and that West did readmit the

girl to school without the knowledge or

consent of Principal Monaghan. These

actions by the Superintendent further

serve to undermine the confidence of the

High School Principal and would directly

contribute to the breakdown in

communication and trust between the

Principal and Superintendent. As noted

elsewhere, these problems between West

and Monaghan have a deleterious impact on

the school system.

Superintendent West concedes that

there are problems between he and

Principal Monaghan but lays the

responsibility for these problems with

102

Principal Monaghan. In the opinion of

the undersigned, both can take their fair

share of the blame but it is the School

Board that is free to choose how to

resolve such a dispute or conflict as

they see fit.

The Superintendent’s management

style of making decisions on his own is

shown in the matter relating to the ice

machine. The Superintendent purchased an

ice machine for the School District

without getting prior Board approval for

the expenditure. The head cook was not

aware of the acquisition either before or

for a considerable amount of time after

the purchase. The record establishes

that the funds for the acquisition came

from the lunch fund and the cooks didn’t

know anything about the use of lunch fund

monies as they should have. This reveals

a lack of communication not only between

————aEoEEoEEEEEOEEe

103

the Superintendent ana the School Board

but also between the Superintendent and

others within the School District. To be

fair, however, this action is consistent

with the Superintendent’s "management

style" that did serve him and the School

District well for several years.

Superintendent West has, over the

years, assumed more and more

responsibility by doing more and more of

the school activities himself. In doing

these additional duties, he did not

always communicate clearly to others what

he was doing. In many cases, such an-~

administrative or management style 1s

very effective in that it gets the work

done and gets it done promptly. However,

such a style has a tendency to trample on

others feelings, and is not always best

in the long run for a large organization

with lots of personnel, such as a school

cami

104

systen. Such actions tend to have a

negative impact on morale as so many of

Superintendent West’s actions have done.

Termination proceedings often

generate complaints about hurt feelings

and other actions that may have

innocently or unintentionally hurt or

injured someone in years past.

Furthermore, in our present day school

system, a natural tension exists between

administration and teachers by virtue of

the development of teacher organizations,

bargaining units, etc. Because of the

natural different perspectives that exist

between administration and teachers,

teachers will frequently feel hurt or

angered by the actions of an

administrator and a reasonable argument

can be made that a good administrator

may, from time to time, necessarily hurt

the feelings of or anger a teacher or a

——————————

105

group of teachers. The difficulty for

any administrator is not crossing the

line between natural and necessary

differences and unnatural and unnecessary

problems. Some of the allegations made

in this hearing against Superintendent

West would fall into the category of

natural and necessary conflict between

administration and staff particularly as

it relates to teacher terminations,

teacher evaluations, and bargaining

negotiations. Unfortunately, not all of

the complaints registered against

Superintendent West by the teachers can

be characterized as natural and necessary

differences. There is in fact a staff

morale problem at Buffalo Center-Rake

that has been attested to by many

witnesses. The staff morale problem has

many causes but it is obvious from this

record that the Superintendent’s

106

inability to communicate with certain

staff members and the Superintendent’s

inability or unwillingness to communicate

with the High School Principal and to

delegate responsibilities to the High

School Principal is a key factor in the

low morale amongst a sizable portion of

the staff. The Superintendent has chosen

to communicate by written memorandum and

note not only to his Principal, Allyn

Monaghan, but to other teachers who

apparently appear to be in some disfavor

with the Superintendent.

‘The dissatisfaction and low morale

of the teachers at Buffalo cCenter-Rake

got to the point where in the spring of

1989, a group of them asked to meet with

certain Board members. The teachers

complained of the lack of professionalism

and communication by West directed toward

them. Other complaints from staff

107

members were heard on an individual basis

over a period of time. The Board members

even talked to Superintendent West about

some of these problems!

By some unknown process,

Superintendent West was able to take the

Athletic Director responsibilities from

Principal Monaghan and give them to Mr.

Miller and to remove Mr. Miller as head

football coach without any direct or

legal action being taken. These two

situations further illustrate the

management style of Superintendent West

in that he chooses to run things his way

because of the confidence that he has in

his own ability to get things done.

Unfortunately, this style of management

tends to step on toes and demoralize

others and sometimes has a tendency to

run rough shot(sic) over finer rules and

regulations. In other words, this

care eae

108

management style may not always do things

the right way but it frequently gets the

job done. With the increased legislation

and regulation in our _ school. systen,

frustration is likely to increase for an

administrator because getting jobs done

is usually more time consuming and more

expensive. Unfortunately, this is what

our law now requires in a_- modern

educational system and the administrative

style used by Superintendent West is

simply not very effective today because

of its corresponding negative

consequences that we see so readily in

this proceeding. What the school system

gains by way of economy and efficiency

with quick, abrupt and strong management

ends up having negative consequences on

legal niceties, staff morale,

communications, relations, accountability

and oversight.

109

The whole grade sharing agreement

provides that Buffalo Center-Rake may

borrow from Titonka the necessary

equipment for an advanced physics class.

Buffalo Center-Rake alleges that the

heavy equipment for the class can only be

used safely in conjunction with the

utilization of certain heavy duty lab

tables that were previously owned by the

Titonka School District and used in their

advanced physics class. Superintendent

West advised the Titonka School Board

that Buffalo Center-Rake wanted to

purchase several of such lab tables from

Titonka. He did so without any authority

or direction from the Buffalo Center-Rake

School Board. Buffalo Center-Rake felt

that the tables should have been loaned

to their School District as a part of the

sharing agreement provision but the

Titonka School Board maintains that this

110

was not the equipment contemplated in the

sharing agreement. The Buffalo Center-

Rake Board has never authorized

Superintendent West to make any such

purchase or representation co purchase

and when they learned of Superintendent

West’s actions, they were upset with his

actions. This Administrative Law Judge

makes no finding as to whether or not

such equipment is in fact the type of

equipment contemplated in the whole grade

sharing agreement but I do find that

Superintendent West made a representation

on behalf of the Buffalo Center-Rake

School Board to the Titonka Board that

was not authorized by the Buffalo Center-

Rake School Board. Such action does give

the School Board reason to lose

confidence in their Superintendent,

particularly in light of the history of

those lab tables and their use by the

» & & |

Titonka School District.

Another area critically affecting

the relationship between the

Superintendent and the School Board has

to do with Superintendent West’s

entitlement to a $4,000.00 IRA for the

past several years. Superintendent

West’s 1987-88 contract provided that he

would be paid $4,000.00 in that year for

an IRA (or similar tax savings annuity)

and he was accordingly paid $4,000.00 at

the beginning of the 1987-88 contract

year. Sometime in the early part of

1988, he asked School Board Secretary

Leona Van Hove to issue him another check

for $4,000.00 for an IRA. The School

Board Secretary contacted Erling

Aalgaard, President of the Buffalo

Center-Rake School Board, and Mr.

Aalgaard and board member Gene Brass

contacted Superintendent West, and

112

advised that a double payment in the

school year would not made.

The School District then received a

letter from the local bank asking that

the 1988-89 $4,000.00 IRA be assigned to

the bank so that it could be applied to a

promissory note obligation that

Superintendent West obviously had with

the bank. This revealed to the School

Board that Superintendent West was

apparently not going to be utilizing the

contractual provision regarding tax

deferred annuities and tax savings

devices for such tax savings but rather

was going to utilize it for other income

purposes. This would justify the School

Board into believing that Superintendent

West had misled them about the need for a

tax savings program or tax annuity. An

identical situation developed in 1989 in

that Superintendent West asked the School

iis

Board in June of 1989 for his $4,000.00

that was not due until July of 1989 for

the 1989-90 school year. The Board

declined to do so and so_ advised

Superintendent West.

Another area causing a breakdown in

communication between the Board and

Superintendent West was the matter over

the location of certain football

practices at Buffalo Center-Rake School.

In the fall of 1989, the administrators

and coaches recommended that football

practices be held at Buffalo Center-Rake

yet the School Board learned that

Superintendent West had indicated there

was not adequate space for junior high

football at Buffalo Center-Rake. This

justifiably upset the School Board

inasmuch as Superintendent West had

previously told the Buffalo Center-Rake

School Board that there probably would be

114

room to hold football practice there.

Another item impacting on the trust

and confidence that the Board felt toward

Superintendent West was the revelation

that Superintendent West had told the

School Board Secretary Leona Van Hove to

Sign a document that Superintendent West

did not allow her to see. Although Van

Hove signed the document when

Superintendent West asked her to, she did

talk to Board President Aalgaard about it

and she was instructed never to do so

again. Such actions by the

Superintendent would justify the School

Board in having doubts about’~ the

Superintendent.

Another area of contention at the

hearing was over certain School Board

policies about reimbursement for travel

expenses outside and inside the School

District. Although the School District

115

apparently adopted a policy regarding

some of these issues in the fall of 1988,

there appears to have been no clearly

defined policy about reimbursement of

staff prior to that time and there

appears to be a lack of understanding or

knowledge about the existing board

policy. A lack of clear policy on this

issue has created problems and concerns

for the School District and its staff

members. In this regard, the School

Board must bear some of the

responsibility since they are the body

that is charged with the responsibility

for formulating policy. However, it is

not unreasonable for a School Board to

expect their Superintendent to prepare

those policies and bring those policies

to the Board for approval. It may well

be argued that the School Board should

initiate these matters and direct the

116

Superintendent to prepare such policies

but it should be the responsibility of

the Superintendent to provide the School

Board with feedback about areas of

confus._on about Board policy.

Furthermore, some Superintendents will

take the initiative and make specific

recommendations about issues causing

disruption and concern within the

District. This was not done in the

instant case by Superintendent West. The

same analysis applies to the School

District’s contention on the issue of

staff development classes and any

resulting changes in pay lanes’ for

téachers. There apparently is no written

policy at Buffalo Center-Rake regarding

pay lane changes although practice has

been established and followed to some

extent. By virtue of no written policy,

however, differences in treatment and

117

confusion over the actual practice has

arisen creating staff problems = and

concerns. These problems can be and

should be avoided by a specific written

policy and again the question arises as

to whether Lt is , the Board’s

responsibility or the Superintendent’s _

responsibility to determine the need for

such a policy and to take the initiative

in formulating such a policy. Because of

the alleged expertise and _ hands-on

experience of the Superintendent, it is

not unreasonable for the School Board to

look to the Superintendent for

information and feedback about such

problems and to expect the Superintendent

to bring these matters to the Board’s

attention for resolution. This was not

done in the instant case.

The undersigned finds that’ the

Superintendent did cause, for three

118

years, a false and inaccurate report to

be made to the Iowa High School Athletic

Association representing that Buffalo

Center-Rake had a certificated head

wrestling coach. The record shows that

not only did Superintendent West

authorize such reports to be made, he

declined to alter the report when it was

brought to his attention. This also has

affected the Board’s trust and confidence

in the Superintendent.

The breakdown in trust and

relationship between the Superintendent

and the Board is established also by

comments made by Superintendent West

about the School Board and its members.

The record establishes that

Superintendent West has publicly made

derogatory comments about’ the School

Board by stating that it was the worst

Board he had ever worked with and the

119

poorest Board in the state. The record

further establishes that Superintendent

West made derogatory comments about

President Aalgaard and Board member Denny

Wessels. These comments were made in

public settings where others could easily

overhear and where little if any

discretion was exercised by the

Superintendent. Other evidence

establishing the breakdown in trust and

relationship between the Board and the

Superintendent is the letter written by

Superintendent West to the School Board

on May 31, 1989, where Superintendent

West, among other things, suggests a

potential suit for back wages against the

school and threatens to have the School

Board members removed or reprimanded

because they were "overstepping their

authority".

The evidence establishes that the

120

administrative style of Superintendent

West, that being one of total control and

involvement, also allowed Superintendent

West to have too easy an access to school

funds that were not always’ properly

accounted for by Superintendent West.

The testimony establishes that a $150.00

check was issued for the registration of

three people for a meeting at the School

Administrators of Iowa. Superintendent

West later gave $50.00 in cash to the

School Board Secretary and advised the

School Board Secretary that one of the

three people did not attend the meeting.

The School Board Secretary later called

Des Moines to inquire about the

procedures and determined that a refund

check had been mailed by the School

Administrators of Iowa and had not been

refunded in the form of cash. Leona Van

Hove then requested that a copy of the

121

check be sent to the School District but

the check and note were apparently

intercepted by Superintendent West

because Superintendent West wrote a note

to Leona Van Hove indicating that he had

received a check for the $100.00 refund

and further acknowledged that he owed the

school the extra $50.00 which he had not

initially turned over. The documentation

shows that the check from the School

Administrators of Iowa to the Buffalo

Center-Rake School District was cashed at

a bank where the school does not do its

banking and the stamp on the back of the

check was a stamp for receiving mail and

not for cashing’- checks. It was

approximately two months from the time of

the initial $50.00 refund that the School

District received the remaining $50.00.

Such actions by the Superintendent

Clearly justify the School Board in

ee

122

losing trust and confidence in their

Superintendent. Another series of

incidents dausing the School Board

justifiable loss of confidence in their

Superintendent was the action of the

Superintendent in writing checks on the

school activity account. The activity

account contains monies for school

classes, student counsel, basketball and

football, cash for annual sales, ball

games, making change, buying’ candy,

concession receipts from games, etc. The

Superintendent had developed a practice

of writing checks to the activity account

for cash and then receiving cash from the

activity account. In writing such

checks, he would instruct the School

Board Secretary or others responsible

for the account to hold the check for a

period of time or leave a note to that

effect. He would ask that checks be held

123

for two weeks on occasion. On some

occasions, rather than having the check

cashed, Superintendent West would write

another check for a larger amount to not

only cover the amount of the original

check but also for additional cash and

ask that the checks be held until pay

day. Such actions justify the School

Board in losing confidence and trust in

their relationship with the

Superintendent. Another financial

dealing which concerned the Board and

which is established in the record is the

testimony by former Principal Fahlk

wherein he testified that he gave

Superintendent West $100.00 for a cub

cadet. Superintendent West denied that

he had ever received the $100.00 and no

records were found to indicate a turnover

of $100.00 by Superintendent West to the

school for the cub cadet. This incident,

eT

124

though somewhat old, is further reason

for the School Board to lose trust and

confidence in their Superintendent.

Superintendent West testified that

he thought his relations with the School

Board were good until November of 1989.

The record, however, in inconsistent with

such a contention in that Superintendent

West’s letter to the School Board in May

of 1989 reflects a surprisingly high

degree of conflict and the undated letter

from Superintendent West to the Board,

marked as Exhibit ee reveals an

awareness by the Superintendent that the

School Board is getting information from

someone that reflects poorly on

Superintendent West. Superintendent West

testified that he didn’t think the School

Board would know in that letter that he

was referring to Allyn Monaghan yet this

too is extremely difficult to believe.

125

The record reveals that

Superintendent West’s administrative and

leadership style became out of favor with

this particular Board and with others

within the school system. Superintendent

West was so accustomed to such a style

that it was difficult for him to adjust

and he reacted improperly in several ways

over the declining loss of control. In

an effort to fight to retain that

control, Superintendent West would employ

gruff mannerisms and uncommunicative

attitudes. In addition, an occasional

threat was also employed such as the

threat to the School Board noted

previously. Such tactics were also used

with School Board Secretary Leona Van

Hove as shown in two memos written by

Superintendent West wherein he threatened

to contact the State Attorney General’s

Office and have charges filed against

ee ee

126

Mrs. Van Hove. These threats should have

no place in an educational system. The

Similarity between that threat and the

threat to the School Board conveys an

attitude by Superintendent West that he

might be able to convince lesser educated

people that he can have them removed by

some miraculous contact with the Iowa

Attorney General. Such is clearly not

the case.

It may be extremely difficult for

any Superintendent to work with so many

districts in a whole grade _ sharing

arrangement such as exists with Buffalo

Center-Rake and the other schools. Other

School Boards and other administrators

are involved and pacifying different

Boards can be extremely taxing.

Compounding this situation, at least for

Superintendent West, is the fact that he

not only works as Superintendent for

eae

127

Buffalo Center but also for the Titonka

District as well. This dual

responsibility creates conflicting

allegiances. These conflicting Boards

and conflicting allegiances when coupled

with an active and involved Board can

make some problems almost insurmountable

and some of the problems experienced by

Superintendent West can be attributed to

these conflicting demands. However, they

do not justify, in the opinion of the

undersigned, an excuse for all of the

actions that I have found herein.

The NCA evaluation report concluded

that there were concerns about the team

management concept at Buffalo Center Rake

and they felt that Superintendent West

needed to begin to delegate more

responsibilities including day to day

equipment purchases, direction of staff,

budgetary matters, staff selection and

128

staff communications. The NCA report

also noted the potential for staff morale

problems and took note of the staff

complaints about lack of input’ and

communication and communication with

administration. The matters noted in the

NCA report have also been testified to in

various forms at the hearing and the

undersigned does conclude that _ such

problems do exist at the Buffalo Center-

Rake School to a sufficient extent so as

to give the School Board sufficient

reason to seek a change in management

style or administrative style and thereby

change Superintendents.

It is within the School Board’s

prerogative to determine how to resolve

this damaging conflict between the

Principal and Superintendent and they are

within their rights and it is within

reason to change Superintendents as an

eT

inci inane tama i

129

attempt to resolve the problems. The

attempted resolution is supported by the

finding elsewhere herein that the Board

has reasonably lost confidence and trust

in their Superintendent and no longer

have sufficient communication with him.

Much of the superintendent’s defense

focuses on claimed violations of

Constitutional and statutory law,

violations of Board policies and rules,

unlawful procedures, and other errors of

law including violations of the Iowa Open

Meetings Law. Unfortunately, this

Proposed Decision will not address those

contentions for the reason that an

Administrative Law Judge does not have

the authority to entertain and consider

those types of issues at this level.

Iowa Code Section 279.24 specifically

grants a District Court Judge authority

to review Board action to see if it

130

violated Constitutional or statutory

provisions, exceeded its statutory

authority, violated Board policy or rule,

held unlawful procedures, or had other

error of law. The statute, regrettably,

does not permit an Administrative Law

Judge to examine those issues at this

stage of the proceedings. No authority

has been presented to show this

Administrative Law Judge that he has the

authority to entertain those types of

issues and a fair reading of the statute

supports that conclusion. Administrative

Law Judges are not required by law to be

lawyers and therefore I conclude that the

Iowa Legislature did not intend for

Administrative Law Judges to rule on some

of the many legal issues raised by the

Superintendent at this stage of the

proceedings. It may be that’ the

inability of an Administrative Law Judge

131

to consider such issues does in fact

create additional expense and time for

the parties to have all issues resolved.

However, I am convinced that an

Administrative Law Judge’s function is to

present an objective and disinterested

evaluation of whether or not sufficient

reasons exist to terminate an

administrator. It is important for a

School Board to get such a disinterested

and objective view point for the reason

that School Boards work much closer with

administrators than they do with teachers

so and therefore it is difficult for a

Board to be impartial and objective. The

Administrative Law Judge’s function is to

provide an initial screening of the

reasons alleged to see whether it is

sufficient legally for a termination.

The School Board may then adopt or reject

the Proposed Decision and further

132

judicial review is available under the

statute, by a duly appointed District

Court Judge, who \then not only examines

the sufficiency of the reasons but also

all of the other legal issues, procedural

issues and Constitutional issues as

raised herein.

Even though the undersigned has no

authority to consider such issues in

making a proposed decision, a few

comments are, I believe, appropriate on

some of the practices and procedures

employed by the School Board.

The School Board’s actions at the

November 20 and the November 28, 1989,

School Board meetings reveal a

Significant lack of understanding about

the Iowa Open Meetings Law. zt 6s

surprising to find a public body that is

not familiar with the requirements of the

Open Meetings Law or at least

i

133

sufficiently aware of the law so as to

consult an attorney before proceeding.

It appears that there were numerous

violations of the Iowa Open Meetings Law

surrounding and relating to the November

20, 1989, School Board meeting as well as

the November 28, 1989, Board meeting. A

reasonable argument can be made that

Superintendent West was not prejudiced by

the actions of the School Board at the

November 28, 1989, meeting since it was

so brief and very little occurred.

Unfortunately, that cannot be said with

confidence about the meeting of November

20, 1989, where it appears that

Superintendent West was evaluated. In

this regard, the School District does

have a Board policy that requires the

approval and consent of both the

Superintendent and the School Board for a

Superintendent’s evaluation. The

134

evaluation done by the Board on November

20 was done without any Knowledge or

input from Superintendent Wes:<. Had the

Superintendent been contacted and invited

to that meeting, perhaps many of these

matters could have been avoided by an

airing of grievances and a frank exchange

of views at that time. However, the

School Board chose not to do so and

Superintendent West later took a

stonewalling attitude and thus the School

District now has to incur the time and

expense of these lengthy proceedings.

It’s not altogether clear that a joint

meeting on November 20 would have avoided

these proceedings and it is not clear

whether the proceedings on November 20

did actually prejudice the substantial

rights of Superintendent West. Whether

or not his’ substantial rights were

prejudiced would depend upon many other

135

factors that will not be addressed

herein. however, there may have been

revelations and a sharing of information

that would have resolved many if not all

of the problems or at least resolve them

sufficiently to have narrowed the focus

of this hearing or delayed any action for

another year or so. Unfortunately, the

Board’s actions on November 20, 1989,

started a chain of events which

entrenched the respective parties in an

inflexible position which prevented any

open discourse and possible

reconciliation.

CONCLUSIONS OF LAW

Termination of a Superintendent need

not be for "just cause". A decision to

not renew a Superintendent’s contract

only requires the existence of a

reasonable foundation to terminate which

must be established by a preponderance of

136

the evidence. Iowa Code Section 279.24;

IASB Certified Employee Contract

Termination Procedure, page 167, 1989;

Wedergren vs. Board of Directors, 307 NW

2d 12 (Iowa 1981). As the Supreme Court

stated in the Wedergren case, "The

necessary close relationship between a

Board and a Superintendent’ requires

utmost trust and confidence in the

Superintendent". The Iowa Court of

Appeals held in a just cause case

entitled Cook v. Plainfield Community

School District, 301 NW 2d 771 (Court of

Appeals 1980), that just cause is a

flexible concept and can arise from

conduct which either directly or

indirectly significantly and adversely

affects the goal of the governmental

body. It has been previously held that a

Board of Directors of a School District

is not married to mediocrity but may

pe

dismiss personnel who are neither

performing high quality work nor

improving in performance. Although this

is not a "just cause" case, it is clear

that a School Board has the final say as

to how best to resolve a disruptive

situation provided there is a reasonable

basis for their decision.

The record establishes that there

has been a breakdown in communication

between Superintendent West and the

School Board, poor communications between

Superintendent West and staff members,

and that Superintendent West has lost the

trust of the majority of the Board of

Directors of the Buffalo Center-Rake

Community School District. The School |

Board’s loss of trust in the

Superintendent is reasonable for the

reasons set forth elsewhere herein and it

is reasonable for the School District to

138

conclude that the interests of the

Buffalo Center Rake School District will

be served by a change in Superintendents.

Accordingly, it is the opinion of the

undersigned that a reasonable foundation

exists to terminate the contract of Don

West as Superintendent of the Buffalo

Center-Rake Community School District.

Therefore, it is the proposed decision of

this Administrative Law Judge that

Superintendent West’s contract be

terminated.

The costs of these proceedings, to

be later certified by the undersigned

Administrative Law Judge, are hereby

assessed equally between the parties.

BEFORE THE BOARD OF EDUCATIONAL

EXAMINERS

No Number Assigned

LG A ee

PI A ge, tt te lb Bite, an te SAMRAT ti ald Wt ah

se

139

IN THE MATTER OF:

BUFFALO CENTER-RAKE

COMMUNITY SCHOOL

DISTRICT,

Plaintiff, MARCH, 1990

BOARD MEMBER

vs. TESTIMONY

DON WEST,

Defendant.

Board President Erling Aalgaard

testimony: .

6. Now, we went through an entire

laundry list of concerns, some of

them by themself may seem rather

inconsequential or even petty, but

after considering all these matters

as an entire unit, have you reached

any conclusions yourself?

A. I would personally find it

difficult to work with Mr. West ona

-- in a close relationship, which

needs to be done in these types of

situations with the school board and

the superintendent. I feel that he

has betrayed our trust on several

occasions, and that is essential to

my feelings as to running the school

system the way it should be. [3/90

Hearing tr., pp. 100-101, ALJ rec.]

2 & 2S

Q. If Mr. West were to continue as

ila |

140

superintendent, how do you think the

rest of the board would view working

with him?

A. I do think that it would be

difficult. Because of the lack of

trust and professionalism that has

been exhibited over the last year or

so. {[Id., p. 102.]

Board Member Denny Wessels testimony:

Q. I’m handing you what has

previously been marked and

identified as Exhibit 2. That’s the

notice of consideration of

superintendents -- the termination

of Superintendent West’s contract.

Were you the one that made this

motion?

A... Yaa, 5 aid.

Q. How many reasons are set forth

on that motion--

A. Ten....

Q. --for the termination?

A. Excuse me.

Ten.

Q. Has your opinion of any of those

ten reasons for terminating Mr.

West’s contract changed? |

A. I don’t believe so.

Q. Would you care to just summarize

141

the reasons why you think Mr. West’s

contract should be terminated and

why the board viewed his performance

unsatisfactory?

A. Basically, in three areas. The

lack of professionalism towards his

staff and towards his board. Lack

of communications, towards both his

staff and his board. And I think in

the board’s opinion, the lack of his

understanding of finances on how to

run the school, and his priorities

of finances. (Id., pp. 571-572.]}

Board Member Gene Brass testimony:

Q. Before we get into some details,

what I would like to ask you to do

is just give the judge just a

general overview of what you

perceive to be the problems that

brought us here today.

A. The problems that we mentioned,

ten -- the ten problems that we

listed, the trust factor, the

communication factor that we/’re

concerned about. ([(Id., p. 715.]}

zx &@ & @

Q. Do you feel that the present

board can resume a working

relationship with Don West.

A. No, we cannot.

Q. Why not?

A. I have to say that the trust

142

factor is the main thing that

bothers me. And communication that

has happened in the past.

Q. What’s your present opinion as

to the validity of the ten reasons

given for considering the

termination of Superintend2nt West’s

contract?

A. I’d say they’re valid. ([Id., p.

722.1

Board Member Raymond Smith testimony:

Q. I’ve asked the other board

members to do this. Could you just

briefly summarize what you perceive

to be the problems that brought us

to this courtroom today?

A. I guess -- I don’t know, I guess

I feel it’s a complete breakdown in

communicaton(sic) between the board

and Mr. West. There just doesn’t

seem to be a working relationship in

existence at this point. 1iGe, Ds

734.]

se 2 & 8

Q. Well, after confronting Mr. West

with problems on November 28,

December 18th, January 3rd, and

January 10th, did you reach any

conclusions?

A. Yeah. The conclusion I reached

is that there was only one

alternative and that was to, you

know, give notice of consideration

143

of termination. We attempted to

communicate with him and it didn’t

happen.

Q. Are you familiar with the ten

reasons that have been given?

A. Yes.

Q. Supporting the termination of

Mr. West’s contract?

A. Yes, I am.

Q. Do you have an opinion as to

whether -- do you have an opinion as

to the validity of those ten items

at this time?

A. I think they’re all valid at

this point. [Id., pp. 774-775.]

IN THE IOWA DISTRICT COURT

IN AND FOR WINNEBAGO COUNTY

No. 14161

DON WEST,

Appellant,

Vee

SUBSTITUTED

BUFFALO CENTER-RAKE APPELLANT’S

SCHOOL DISTRICT, BY BRIEF FILED

ITS BOARD OF DIRECTORS, 1/15/91

Appellee.

A TERMIN:,TION DECISION UNDER SECTION

279.24, CODE OF IOWA (1989\', MUST BE MADE

BY A FAIR AND IMPARTIAL SCHOOL BOARD.

Pertinent portions of section

279.13, Code of Iowa (1973), read as

follows:

(T]he board may by a majority

vote... cause said ([teacher’s]

contract to be terminated by written

notification of termination...

provided, however, that at least ten

days prior to mailing of any notice

of termination the board... shall

inform... that (1) the board is

considering termination... and that

(2) the teacher shall the right toa

private conference with the board...

(and) a written statement of reasons

for considering termination... [if

the teacher so requests,] the board

shall, before any notice of

termination is mailed... hold a

private conference.... [If written

notification of termination is given

after the private conference,]} the

teacher shall have the right to

protest the action of the board, and

to a hearing thereon, by

notifying... the board... in which

ee

145

event the board shall hold a public

hearing... [emph. supp.]

In 1978, the Iowa Supreme Court

concurred with the United States Court of

Appeals for the Eighth Circuit that

"(tj)his statute was intended to provide

non-tenured teachers with procedural due

process." Keith v. Community School

District of Wilton in the Counties of

Cedar _ and Muscatine, 262 N.W.2d 249, 259

(Iowa 1978).

In Keith, the Iowa Supreme Court

further concurred that minimal

requirements of statutory due process

dictated that the decisionmaker be fair

and impartial "and that such right arises

from section 279.13 itself." z4,, at

259-262. In so concurring, it identified

the following instances as those in which

a decisionmaker is not fair and

impartial:

146

(1) When the decisionmaker "has a

special interest in the outcome... " of

the case to be decided;

(2) When the decisionmaker has

actual bias against the person whose case

is being adjudged;

(3) When the decisionmaker acts as

both prosecutor and judge;

(4) When the decisionmaker acts as

both witness and judge, at least to the

extent it has to adjudge its own

credibility as a witness;

(5) When the decisionmaker "’has

prejudged the case.../’";

(6) When the decisionmaking

procedure itself does not satisfy the

appearance of justice because it offers

"a possible temptation to the average

person as a judge * * * not to hold the

balance nice, clear, and true between

the... " prosecutor and the accused. Id.

147

Notably, in identifying these unfair and

partial instances, it specially excluded

from them the instance of when the

decisionmaker also served merely as

preliminary investigator: "A vote to

consider termination is not the

equivalent of acting as_ prosecutor,

judge, and jury." Id., at 261.

A year later, in a somewhat-

different educational proceeding, but one

in which impartiality was required,

[albeit per constitutional due process],

the Iowa Supreme Court further stated

that:

We have a special concern here

regarding the requirement of an

impartial forum. See Keith... This

Same board has once found Mr. Bishop

unqualified. The board must, like a

trial court on reversal, lay that

finding aside. Any board member who

harbors prejudice or predilection

should recuse himself or herself.

Board members possessing personal

knowledge must place it aside or, if

148

they are unable to do so, themselves

step aside. Vv one ea

Educational Agency Number 1, 275

N.W.2d 744, 752 (Iowa 1979) [emph.

supp. ].

Before its incorporation in the Code

of Iowa (1977), section 279.13 was

revised, so that sections 279.15-279.18

made, inter alia, the superintendent the

person who brought a teacher termination

consideration before the board and made

the procedures for hearing and appeal

much more detailed. Keith, supra, at

261; Briggs v. Board of Education of Fort

Madison Community School District, 282

N.W.2d 677, 678-679, 682, 684 (Iowa

1979). Notwithstanding this revision,

the Iowa Court of Appeals continued to

hold that an impartial decisionmaker was

required as a matter of due process,

{although most likely constitutional}.

Vv Vv ° ucati of the

= -Li cho

149

District, 298 N.W.2d 339, 344 (Iowa App.

1980). Of course, in this case, it also

held that the initiation of the

termination proceedings and the

presentation of the evidence by the

superintendent at ae fairly-conducted

hearing neutralized any impartiality on

the part of the school board. Id.

In 1981, the Iowa Supreme Court

passed upon section 279.24, Code of Iowa

(1989), for the first time. Wedergren v.

Board of Directors, 307 N.W.2d 12 (Iowa

1981). Enacted in 1976 to cover

administrator termination, [ch. 1149, §5,

1976 Iowa Acts], section 279.24 contained

both similarities to and dissimilarities

from the teacher termination provisions

of section 279.13, Code of Iowa (1973),

and section 279-15-279.18, Code of Iowa

(1977):

(1) Similarly, all required the

150

furnishing of written reasons for

termination;

(2) Dissimilarly, section 279.15

and 279.16 provided for the bringing and

presenting of the case against’ the

teacher by the superintendent, whereas

section 279.24 provided for the bringing

of the case by the board itself, but

allowed the presentation of the case by

the board’s “legal representative";

(3) Similarly, all afforded the

teacher and administrator notice and the

opportunity to be heard;

(4) Dissimilarly, section 279.13

and its successor, section 279.15,

provided for the hearing to be conducted

by the board, as well as the termination

decision to be made by the board, whereas

section 279.24 provided for the hearing

to be conducted by an administrative law

judge, followed by the termination

151

decision to be made by the board.

In Wede en, the Iowa Supreme Court

did not determine whether the

superintendent was entitled to statutory

due process. It did not because it found

he was entitled to constitutional due

process. Wedergren, supra, at 16. This

waS so because the termination was

attempted during the term of his

contract. Id. Having done so, it stated

that "{a]} basic tenet of procedural due

process is that a person is entitled to a

fair hearing before an impartial

cripunai.” Id., at i7.

Thereafter in response to a two-

prong impartiality challenge, the Iowa

Supreme Court first reaffirmed the Keith

precept that impartiality may not be

presumed by prior investigatory

activities alone:

In the performance of its duties,

152

and in making the initial decision

required by section 279.24 and .25

to consider termination, a board

must necessarily be exposed to facts

or allegations about the

superintendent’s conduct. In the

absence of evidence that a board has

prejudged the facts of the case, we

will not find a denial of due

process by the combination of

investigative and adjudicative

functions. Cits. Ordinarily, some

exposure of a decisionmaker to facts

in dispute does not automatically

disqualify the decisionmaker on due

process grounds. idg., {emph.

supp.]; accord, Larsen v. Oakland

Community School District, 416

N.W.2d 89, 95 (Iowa App. 1987).

With respect to the first prong, it then

noted, as had the Court of Appeals in Von

Krog, supra, that the presentation of all

the evidence at a fairly-conducted

hearing, the "later decision to

terminate... be{ing] based solely on the

record made at that hearing.... *

eliminated any taint from the board’s

involvement at the investigatory stage.

Id.

With respect to the second prong, it

153

reaffirmed that "an unconstitutional

combination of prosecutory and

adjudicative functions may occur where

the individual who is responsible for

presenting one party’s case to a

decisionmaker also acts as a

decisionmaker." 1a., 8 28. In this

case, however, the Iowa Supreme Court

concluded that the board "did not

actually act as prosecutor... { because]

(t})he presentation of this case before

the hearing officer was done by outside

legal counsel." id., emph. = supp.;

accord, Board of Dental Examiners v.

Hufford, 461 N.W.2d 194, 200 (Iowa 1990).

In 1983, the Iowa Court of Appeals

"address(ed}] the recurring constitutional

issue; i.e. the allegation that Olds

‘right to due process in his hearing

before the Board was violated because it

was biased against him." Olds v. Board

154

of Education of Nashua Community School

District, 334 N.W.2d 765, 768 (Iowa App.

1983). As in Wedergren, supra, the

impartiality issue was determined as a

matter of constitutional, not statutory

due process. Id. As in Bishop, supra,

this issue involved the impartiality

which can accompany a board rehearing a

case after reversal. Id., at 767-769.

On this issue, the Court of Appeals ruled

that there was no impartiality under the

following-described circumstances:

Before the 1980 hearing began, Olds’

attorney questioned all five board

members separately and extensively,

especially the three who were on the

1979 Board. Without exception, all

members stated their ability to keep

an open mind and that there was no

reason why they could not decide the

termination question impartially and

only on the basis of the evidence to

be presented later at the hearing.

"ae three members of the 1979 Board

-2re asked to consider carefully

their ability to measure up to the

Bishop uidelines; they concluded

they could fairly decide the issue

anew even though they were inclined

155

to believe at that point that their

1979 decision was still correct.

Qlds gives us no reason to doubt the

statements of the Board members

other than his own belief that it

could never impartially decide his

case. We reject that belief and

conclude his due process rights were

not violated. Id., p. 769, emph.

Supp. ]

After 1983, the impartiality issue

has "recurred" only once in the chapter

279 context, and then only in the teacher

termination context. Larson, supra. In

this 1987 context, the Iowa Court of

Appeals simply held that the modest fact

that one board member previously had

observed the teacher’s teaching was

insufficient as the only evidence of

partiality: "The trial court determined

there was no evidence that a member made

a decision other than on the evidence

presented at the hearing nor (sic) was

there any evidence from which it could

conclude the board was not fair and

156

impartial." Id.

As argued infra this Brief, West

believes that his case implicates the

protections of constitutional due

process, particularly including the right

to a fair and impartial decisionmaker.

Nevertheless, even if it does not, he

believes that his case at least

implicates the protections of the same

right by statutory due process.

As did section 279.13, Code of Iowa

(1973), 279.24, Code of Iowa (1989),

grants notice and a hearing. Thus, it

"was intended to provide... procedural

due process.... [{and] [i]t is obvious...

[West] too was entitled to an impartial

decisionmaker.... " Keith, supra, at

259. Although every relevant opinion

since Keith, [specifically including the

Singular §279.24 interpretation contained

in Wedergren, supra], has been decided on

ee

157

the basis of constitutional due process,

there just is no reasonable ground upon

which to distinguish the 1973 statute

from the 1989 statute.

Furthermore, it is must not common

sensical to think that the legislature

would have gone to the trouble in section

279.24 of prescribing explicitly the due

process embodied in the requirements of

the specific reasons’ statement, the

neutral hearing officer selection, the

hearing notice, the right to

representation by counsel, the hearing

reporting, and the holding of a hearing,

without intending implicitly to complete

these processes of submission to a fair

and impartial decisionmaker. In other

words, what would be the point of

engaging in that much procedure, energy,

time, and expense if the ultimate

decision could be predetermined before

iain ee

158

engagement?

Division II

THE SCHOOL BOARD IN THiS CASE DID

NOT ACT AS A FAIR AND IMPARTIAL

DECISIONMAKER.

The contract of a superintendent may

be terminated only "by a majority vote of

the membership of the board... " §279.24,

Code of Iowa (1989). Here, "a majority

vote" was 4, there being a Board

"membership" of 7. Only 6 members voted

for termination, Board member Kieweit

having abstained. (Appendix, infra this

Brief, pp. 39, 40.]

Of the remaining 6 members, West

believes that at least 3, Smith, Wessels,

and Aalgaard, were disqualified from

voting ab _ initio, the 3 remaining being

insufficient to constitute for “7

majority vote". Of the 3 remaining, West

159

also believes that Hove and Brass were

disqualified from voting as time passed,

the 1 left assuredly being insufficient

to constitute a "majority vote".

In 1975, the United States Supreme

Court held as follows:

Concededly, a "fair trial ina fair

tribunal is a basic requirement of

due process." Cit. This applies to

administrative agencies which

adjudicate as well as to courts.

Cle, Not only is a biased

decisionmaker constitutionally

unacceptable but "our system of law

has always endeavored to prevent

even the probability of unfairness."

Cits. In pursuit of this end,

various situations have been

identified in which experience

teaches that the probability of

actual bias on the part of the judge

or decisionmaker _is too high to be

constitutionally tolerable. Among

these cases are those in which the

adjudication... has been the target

of personal abuse or criticism from

the party before him. Withrow v.

Lesean, 35 8. ° €t. 1456, 1464, 421

U.S. 35, 46-47, 43 L. E@. 2€ 712

(1975), [emph. supp. ]}

Here, certain facts alleged by the Board

as suporting its reasons to consider

ecient

160

termination were derogatory remarks

allegedly made by West about Aalgaard and

Wessels, [as well as a mcre general one

about the stupidity of the whole board].

The Board evidence of these remarks

showed they were "personally abusive and

critical" and "targeted". The Board

found these remarks to be fact.

Under these circumstances, Aalgaard

and Wessels should have recused

themselves from sitting in judgment of

West. Although they well may have felt

they could rise above any "personal

stings" from West, Mayberry, infra, their

personal feelings still were insufficient

within the ambit of due process:

Offcut does not fit this case, for

the state judge in the instant

controvery was not an activist

seeking combat. Rather, he was the

target of petitioner’s insolence.

Yet, a judge, vilified as was this

Pennsylvania judge, necessarily

becomes embroiled in a= running,

bitter controversy. No one _ so

161

crue Slandered is likely to

maintain that calm detachment

necessary for fair adjudication....

Many of the words leveled at the

judge in the instant case were

highly personal aspersions, even

"fighting words" - "dirty

sonofabitch", dirty tyrannical old

dog," "stumbling dog," and

"fool... " Insults of that kind are

apt to strike "at the most

vulnerable and human qualities of a

judges’ temperament." Cit. Mayberry

v. Pennsylvania, 91 S.Ct. 499, 505,

400 U.S. 455, 465-466 (1971).

Here, if believed, [as apparently they

were], statements that Wessels "cheated

his way through college" and was "too

dumb to pour piss out of a boot" and that

Aalgaard "was power hungry" and "a tight

screw" were clearly "[({i]nsults of that

kind". Id. As such, they provoked the

"probability of unfairness",

Withrow,supra, which precluded Wessels

and Aalgaard from participating in the

decisionmaking:

In making this ultimate judgement

the inquiry must be not only whether

there was actual bias on

162

respondent’s part, but also whether

there was ‘such a likelihood of bias

or an appearance of bias that the

judge was unable to hold the balance

between vindicating the interest of

the court [school board] and the

interests of the accused." Cie .

"Such a stringent rule may sometimes

bar trial by judges who have no

actual bias and who do their very

best to weigh the scales of justice

equally between contending parties,"

but due process of law requires no

less. Taylor _v. Hayes, 94 S.Ct.

2697, 2704-2705, 418 U.S. 488, 501,

41 L.Ed.2d 897 (1974).

Of course, the probability-of-unfairness

rule of disqualification arises from a

knowledge of human nature:

The presumption of honesty is a

presumption that officials will make

every effort to act impartially and

will disqualify themselves when they

believe that this is not possible.

The significance attached to the

possibility of self-disqualification

is an analogue of the significance

of the presumption of honesty in

assessing the risk of bias. Each

depends on the adjudicator’s ability

to recognize and thereby prevent his

biases from affecting his decision.

Even if it is presumed that

adjudicators will make every effort

to be impartial and will disqualify

themselves when they believe that

this is not possible, the

163

presumption of honesty should not be

relied upon too heavily as a

mitigator of bias.

From different perspectives,

adjudicators are both the best and

t w } fe) j own

biases. Because the individual

adjudicator may be able to detect

biases hidden to the outside world,

self-disqualification is allowed.

Because one’s biases may be hidden

from oneself, however, the safequard

of disqualification should not be a

substitute for an inquiry into bias.

Individuals may be reluctant to

admit to themselves that their minds

are closed on a subject, even more

relu t to admit it too Ss, and

more reluctant still to announce it

seée Thus, although

self-disqualification and the

presumption of honesty may have some

bearing on the risk of a biased

adjudicator, they should not be

heavily relied upon to insure

fairness. Note, Due Process and the

tat

Combination of Administrative

Functions: A Balancing Approach, 63

Iowa L.Rev. 1186, 1204-1205 (1978)

Iowa, this rule has been adopted

specifically for quasi-judicial

tribunals:

Canon 2 of the Code of Judicial

Conduct provides that "[a] judge

should avoid impropriety and the

appearance of impropriety in all his

164

activities." (Emphasis added.) We

believe the agency personnel charged

with making decisions of great

import, as in this case, should be

guided by this rationale. Antsey v.

Iowa State Commence Commission, 292

N.W.2d 380, 390 (Iowa 1980).

Smith too, {and Wessels, in

conjunction with another ground for

disqualifying him], were precluded by the

probability of actual bias from

participating in the decisionmaking.

Smith’s preclusion, however, was not the

result of being the target of personal

abuse or criticism from West, but was the

result of Smith making West his political

target.

Smith created the appearance of

unfairness by activity uniquely analogous

to the following:

During the month before the hearing,

defendant Mayes, made public

statements in his campaign for

election to the [school] board

concerning Dr. Staton, {the

superintendent]. In newspaper

advertising Mayes stated that

165

defendants Moore and Wade, [school

board members], had publicly said

that no progress could be made until

there was a new superintendent, that

he, Mayes, was pledged to seek a new

top level administration for the

schools, that from discussions with

parents, teachers and citizens it

had become apparent to him that the

trouble lay with the superintendent,

and that he would vote to make the

necessary change.... It was Mayes

who moved for the dismissal...

Staton v. Mayes, 552 F.2d 908, 913

(10th Cir. 1977).

Moreover, the fit of the analogue holds

even for Smith’s testimony that he "tried

to separate some" of his "reservations"

about West from his school board "role".

Comparatively, Mayes went even further by

testifying "that he had not committed

himself before hearing the evidence to

vote for plainiff’s dismissal and felt

the decision had to be based on the

evidence at hearing." Mayes, supra, at

913-914. The analogue also holds with

respect to Wessel’s service in Smith’s

campaign and statement to Hanna, these

166

placing him in the positions occupied by

Moore and Wade. id.

The factual analogy, stronger if

anything to West’s position than it was

to Dr. Staton’s matches the preclusion

advanced by West:

The firm public statements before

the hearing by defendant Mayes for

the removal of Dr. Staton, and the

discussions by defendants Moore and

Wade as admitted, reveal a tribunal

not meeting the demands of due

process for a hearing with fairness

and the appearance of fairness.

Cits. These were not the mere

statements on a policy issue related

to the dispute, leaving the

decisionmaker capable of judging a

particular controversy fairly on the

basis of its own circumstances.

Cit. Nor was this simply a case of

the investigation of charges and a

statement of them during an

investigatory phase by the body that

will later decide the merits of the

charges. Cits.

Instead this case involves statement

on the merits by those who must make

factual determinations on contested

fact issues of alleged incompetence

and willful neglect of duty, where

the fact finding is’ critical.

o> | i

4S Aes

167

We are mindful of the reference

in the trial court’s opinion to the

testimony by each defendant that

they voted to dismiss plaintiff

based on the evidence presented at

the hearing, and that plaintiff had

failed to establish that he was

denied procedural due process.

While the defendants testified that

they required proof at the hearing

and decided on the basis of the

proof, the evidence is

uncontradicted on the making of

several public statements by

defendant Mayes for the removal of

plaintiff and of unfavorable

ciscussion b ° a Wade as

well. We are convinced that these

established circumstances left no

room for a determination that there

was a decision by a fair tribunal,

with the appearance of fairness, in

view of the totality of the

circumstances. Cits....

We do not say that such

statements in an election campaign

or between members were unlawful or

improper. However, a due process

principle is bent too far when such

persons are then called on to sit as

fact finders and to make a decision

affecting the property interests and

liberty interests of one’s

reputation and standing in the

profession. Id., at 914-915, [emph.

supp. ].

Furthermore, even if the _ public

statements made by Smith and Wessels were

168

deemed, {for some unperceived reason],

less strong than those in Mayes, and even

if the failure of Smith and Wessels ever

to assert the Olds’ disclaimer

statements, [despite vigorous challenge

by West’s counsel during the ALJ hearing

and particularly at the 4/26/90 private

hearing], were overlooked, the subsequent

conduct of Smith and Wessels was still

unusually corroborative of their

"uncontradicted" statements, id., at 914:

(1) It was Smith who, just as soon

as he was sworn in, [at a meeting

mysteriously called early}, started the

nitpicking of West’s performance in which

Wessels already was engaged.

(2) Within 45-60 days after Smith

was sworn, it was he and Wessels who were

violating Board policy by consulting with

an attorney about "what the procedures

would be if we ever wanted to make any

teint oe ne

169

changes."

(3) Perhaps even before Smith was

sworn in, it was Wessels who was deeply

involved with Aalgaard@d’s telephone

networking of consensus against West,

probably in violation of the’ open

meetings law.

(4) At the illegal 11/20/89 closed

session, it was Smith and Wessels who led

the advocating and agitating against

West, Wessels admitting near the end that

he "really doubt[{ed] that I can change my

viewpoint.... " and who led the charge

to take action immediately. (Appendix,

infra this Brief, p. 15.]

(5) It was Smith who took it upon

himself to visit West on 12/18/89 to

inquire about resignation. It was then

Wessels who at the 12/18/89 Board meeting

asked West on the record if he had

resigned yet, and when he received a

170

negative answer, moved, Smith seconding,

to have a committee appointed to discuss

resignation with counsel.

(6) It was Smith who professed to.

knowing how important board impartiality

was in administrator termination

proceedings, yet who was the major

contributor to the formulation of the

1/10/90 questions, the main purpose of

which were to prejudice West in

everyone’s eyes.

(7) It was Smith and Wessels who

served as two of the mainstay witnesses

against West at the ALJ hearing, Smith

most frequently being caught, upon

retrospective analysis, trying to

stretch, exaggerate, or downright alter

the truth to hurt West, [even to the

extent of controverting other testimony

and evidence presented by the Board].

The conduct of Smith and Wessels

ileal aeain ita

171

which is corroborative of their

appearance of bias by prior statement is

also corroborative of their bias by

prejudgment. Indeed, such prejudgment

was demonstrated overwhelmingly in the

record to have existed within Aalgaard,

Hove, Smith, and Wessels prior to and by

the end of the November 20, 1989 closed

session and within Brass by no later than

the end of the January 10, 1990 meeting.

Such prejudgment has the following

circumference:

Prejudgment is a preconceived point

of view that affects the weight of

evidence presented at the

hearing....

A trier of fact is charged with

resolving adjudicative facts on the

basis of a preponderance of the

evidence presented. This

requirement is premised on _ the

notion that an impartial adversary

hearing is the most accurate method

for resolving adjudicative fact....

A preconceived view about

adjudicative facts creates the

danger that the adjudicator will not

be persuaded by the weight of the

——

172

evidence presented at the hearing

sufficient to persuade the

imparitial adjudicator. In other

words, it creates the danger that

the parties will not have a

meaningful opportunity to persuade

the adjudicator. Disqualification

is therefore required if there

exists an unacceptable risk that the

preconceived bias of adjudicative

facts will shift the burden of proof

prescribed by law. Note, 63 Iowa L.

Rev., supra, at 1193-1195.

In these proceedings, it should have been

the Board’s representative, not West, who

had the burden of proof. Cc... 21G8,

Supra, at 768; Board of Education of Fort

Madison Community School District v.

Youel, 282 N.W.2d 677, 680 (Iowa 1979).

As denoted previously, the rule

pertains that Board members are not

disqualified per se just because they

conducted investigations, were exposed to

evidence, or even formed impressions.

Accord, Hortonville Joint School District

No. 1 Vv. Hortonville Education

Association, 96 &§.Ct. 2308, 2314, .2316,

173

426 U.S. 482, 493, 497-498, 49 L.Ed.2d 1

(1976). However, Wedergren, supra, at

95, qualified this rule to say that it is

operative only "[{i]Jn the absence of

evidence that a board has prejudged the

facts of the case... " Here, the rule

does not apply because there is

practically no evidence that Aalgaard,

Hove, Smith, Wessels, and later Brass did

not prejudge the adjudicative facts

against West:

(1) AS previously discussed, Smith

and Wessels evinced in the summer of 1989

their prejudgment that "West is’ the

problem, he’s got to go.... " CFEes De

1119. ]

(2) As early as September, but

probably by October, 1989, a consensus of

5-6 Board members was achieved "that Mr.

West wasn’t doin’ an adequate job... "

(Tr., p. 579.] Although testifying board

174

members frequently quibbled over the

meaning of the term "consensus" its

ordinarily-understood meaning is: "i 3

group solidarity in sentiment and belief

2a: general agreement: UNANIMITY... b:

the judgment arrived at by most of those

concerned... " Webster’s New Collegiate

Dictionary, pp. 238-239 (G.J.C. Merriam

Co. 1979).

(3) During that same time period,

Jensvold became aware that Aalgaard and

Wessels "had a majority of the votes...

{that is,] a consensus had been arrived

at before the closed meeting, to the

effect that the superintendent should be

asked to resign.... " ([(Tr., p. 955.)

(4) At the illegal November 20,

1989 Board meeting, Aalgaard, Hove,

Smith, and Wessels were not only doing

most of the advocating of articulated

facts and factual conclusions, they also

sao

were driving the board into reaching

"conclusions", a "decision", and a

"consensus" and to "doing something".

(Appendix, infra, pp. 1, 4, 8, 12, 15.]

During this meeting, Smith stated his

prejudgment that "I think we should ask

for his resignation.... I don’t know if

anything ____can change." (Id., 11-12.)

Near the end of the meeting, a Board

member asked, "Is anyone going to change

their viewpoint?" and no one answered in

the affirmative, Wessels instead

verifying that "I really doubt that I can

change my viewpoint." ([Id., p. 15.j

(5) At the illegal November 28,

1989 Board meeting, Aalgaard removed any

lingering doubt as to what prejudgment

had been reached by the majority,

(Jensvold not attending this meeting]:

It is the feeling of the majority of

the board that conditions have

deteriorated in our school system to

176

the extent that a change needs to

occur. Therefore, I must inform

you, Don, that there is not support

> to r Ww

your contract for another year. Our

maggestion is, you submit your

resignation effective on or before

June 30, 1990, so that you and the

board can make a transition in a

timely and orderly fashion. [Id.,

pp. 19-20. ]}

Obviously, "renewal" of West’s contract,

prejudged as it was by this statement

made without dissent, was the

quintessential issue to be determined by

the Board in the subsequent chapter 279

proceedings.

(6) At the January 3, 1990 Board

special meeting, Aalgaard, Brass, Hove,

Smith, and Wessels "deemed" West’s

"performance unsatisfactory, even though

the numerical compilation and averaging

of all 7 evaluations did not place his

performance in that category and even

though the stated purpose of the

evaluation was "to give feedback" in

aaa

177

various areas, thus by inference not to

achieve consensus judgment. [Ex. #31. ]

(7) At the January 10, 1990 Board

special meeting, Aalgaard declared the

"firm resolve" impelling the Board to

"reveal... the reasons for our action."

|

(Ex. #1, p. 2, emph. supp.] Of course,

what it "revealed" were questions, the

West-unfavorable answers to which the

Board majority accepted by presumption

and nothing more. Quite naturally, the

reasonable inference from the "action"

reference and the answer presumption was

that establishment of the facts for any

purpose, {including for the more limited

consideration purpose], was no longer

important since a prejudgment of those

facts had been made.

(8) At the ALJ hearing, 4 members

or a majority of the Board ascended to

the witness stand and gave their

178

prejudgment opinions that sufficient of

the reasons and = supporting’ factual

incidents for termination were still

valid to their satisfaction. itr... Pe.

100-102, 571-572, 715, 721, 734, 774=

775.)

(9) At the April 26, 1990 private

hearing, the Board dispensed with any

preparation of the ALJ evidentiary

transcript, the very record from which

they were supposed to have derived their

decision. (4/26/90 tr., Pe 22} At the

April 26, 1990 private hearing and in the

Board’s April 30, 1990 decision, no

response was made to West’s counsel’s

challenges to fairness and impartiality,

including a specific request that the

Challenges be "answered when you answer,

when you resolve this hearing matter... "

(Id, pp. 3, 5, 7, 12-13.) At the April

30, 1990 illegal meeting, the Board spent

———— Oe

179

13 minutes in decisionmaking, none in

deliberation of the facts, but rather in

making endorsements of "the decision",

[not seeing it as proposed], of the

administrative law judge and the

supplemental decision pre-prepared for

their signatures. [(Appendix, infra this

Brief, pp. 41-45.) The reasonable

inference from all these post-ALJ hearing

proceedings is that at the very first

time the Board actually was entitled to

engage in decisionmaking, it felt it had

nothing more to do.

As if the prejudging were not bad

enough, Aalgaard, Brass, Smith, and

Wessels compounded their abilities to be

fair and impartial even further by

becoming inextricably involved in the

prosecution of the case, even to the

extent of becoming the chief witnesses

for the prosecution. Combined with their

180

permissible investigatory and initial

consideration functions, they thereby

impermissibly took on the

prosecutorial/witness functions and thus

voided any jurisdiction or authority of

either the Board or the ALJ to proceed

toward the termination decision:

The petition for the writ of

certiorari alleges lack of

jurisdiction on the part of the

Civil Service commission and

questions the legality of the

proceedings.

Code, Section 5711, provides:

"“Jurisdiction-attorney-decision.

The Civil Service Commission shall

have jurisdiction to hear and

determine all matters involving the

rights of civil service employees,

and may affirm, modify, or reverse

any case on its merits."

The power to “hear and determine"

ks an essential ingredient of

jurisdiction, and the quoted words

refer to a judicial investigation

and settlement of an issue of fact,

which implies the weighing of

testimony offered by both sides;

from a consideration of which the

relief sought by the moving party is

either granted or denied....

181

This record shows, without

dispute, that the Charges filed

against Sandahl, were prepared and

filed by the Civil Service

Commission, the same body that under

the statute was to "hear and

determine" the case....

In the case at bar, the charges

were filed by the Civil Service

Commission. It was both the

prosecutor and the judae.

Sandahl as a civil service

employee of the City of Des Moines

was entitled to a trial. Yes, a

fair and impartial trial, by a

tribunal that was open minded, that

was not prejudiced by outside

influences. We do not doubt the

honest or the sincerity of the

members of the Civil Service

Commission, but they or no one else

can _ both prosecute and fairly try

One charged with an offense. Here

we have a record where the Civil

Service Commission made an

investigation, what evidence was

introduced does not appear. Then we

find this Civil Service commission

going before the grand jury seeking

an indictment of Paul Sandahl. Then

the charges were filed by the Civil

Service Commission, which then held

the hearing. Would anyone say, in

face of such a record, that Paul

Sandahl_ had a fair and impartial

trial? That his rights as a civil

service employee of the City of Des

Moines had been properly protected?

182

The Civil Service Commission had

no authority to discharge Paul

Sandahl without a hearing, and that

hearing must be a fair and impartial

one.

To say under this record that

Paul Sandahl had a heari.ig would be

mere mockery. The verdict was ready

to be rendered before the trial

commenced. In the words of a member

of the Civil Service Commission set

out in this record, "We had Paul

Sandahl convicted before he ever

went before us for trial." Sandahl

v. City of Des Moines, 290 N.W.2d

697, 698-699 (Iowa 1940), [emph.

supp. ].

Here, the Board no doubt will argue

that it sanitized itself by hiring Lipps

and presenting its case to an ALJ. This

argument should faii, however, on

fundamental precepts.

In the first place, the mere

parroting of facially-proper procedure is

not the same as the actual following of

proper procedure. In one of the leading

cases in which the usual compatibility of

the investigative and decisionmaking

—

183

functions was approved, the United States

Supreme Court especially warned that:

"Of course, we should be alert to the

possibilities of bias that may lurk in

the way particular procedures actuaily

work in practice." Withrow, supra,

S.Ct., at 1468, U.S. at 54. Further, it

acknowledged that initially-proper

investigation can evolve into improper

participation in the succeeding

proceedings: "Clearly, if the initial

view of the facts based on the evidence

derived from non-adversarial processes as

a practical or legal matter foreclosed

fair and effective consideration at a

subsequent adversary hearing leading to

ultimate decision, a substantial due

process question would be raised." Id.,

SecCu., at 1470, U.S. at 58, [emph.

Supp. ].

In the second place, neither Lipps,

184

nor Aalgaard, Brass, Smith, and Wessels

demonstrated any inclination whatsoever

to separate themselves from each other or

otherwise to segregate their respective

functions:

(1) When Lipps was’7~ retained,

sometime after December 18, 1989, the

Board already was in deep trouble. The

majority had committed itself to a

prejudgment of the situation and the path

to be pursued, which commitment had been

hardened by public awareness of it. The

majority, some of whom were well-educated

and well-versed in the open fentinee’

law, also had participated in at least

two meetings which constituted a gross

perversion of that law. The majority

further had violated its own policies on

chain-of-authority and superintendent

evaluations. Yet, despite these patent

flaws of proceeding further, at least for

185

the upcoming year, Lipps did absolutely

nothing to bake the out-of-control

locomctive.

(2) Quite the contrary, Lipps

jumped on board and fueled its boiler.

He apparently counseled the Board to

begin a series of superficial and

overtly-orchestrated activities designed

to scare West into resigning, to

prosecute its prejudgment in the court of

public opinion, to negate the positive

evaluations which stood unblemished in

the then-extant record, and to

manufacture weight of evidence by the

sheer number of accusations. He and the

Board pursued this series jointly as a

preliminary part of the prosecutorial

strategy, fully cognizant of its use in

the §279.24 proceedings to which they

committed themselves in secret.

(3) As part of this strategy, the

186

special meetings on both January 3 and

10, 1990, were transparent manipulations.

Without notice of more than a few days

and notice apprising of more specifics,

West was given no meaningful notice of an

opportunity to defend himself. For the

initial form evaluation, the majority and

Lipps made up the rules as they went

along. For the second evaluation, Smith

drew and Aalgaard read the indictment

after asking West to answer it sight

unseen. In short, as can be seen readily

in the 1/10/90 closed session tape

recording, Lipps and the Board members

were exceedingly active in prosecutorial

strategy and not at all interested in the

consideration which was supposed to be

under advisement or the response they

Claimed post hoc to have been seeking in

Sincerity.

(4) After the §279.24 proceedings

een

187

were commenced, the jointly-implemented

strategy was maintained as the mainstay

of the prosecutorial presentation of the

evidence at the ALJ hearing. Over and

over again, Lipps distracted from the

truth of the prejudgment which had been

made by asserting and implying that the

Board had remained open-minded, if only

West had been willing to communicate with

at. Moreover, hiding behind the sealed

open meeting records, Lipps and his

compatriots in the witness chairs glossed

over in tandem their true motives.

(5) Additionally, the plethora of

questions generated by Smith in an effort

to prosecute its prejudgment before the

court of public opinion became the

outline of grievances against West. Of

course, this scheme imposed upon West the

hardship of having to prepare a defense

to some 60-70 separate allegations, many

188

remote in time and amorphous in content.

Even more importantly, it supplanted what

might have been the legitimate sources of

concern and inquiry, namely whether or

how the Board could handle its own

insecurity in sharing its superintendent

and otherwise participating in the

extraordinary, 4-way, whole-grade sharing

agreement and whether certain Board

members harbored ulterior motives,

unrelated to the welfare of the children

and their community.

(6) Furthermore, by working

together as prosecutor and prosecutorial

witnesses, Lipps, Aalgaard, Brass, Smith,

and Wessels were able to place West in a

no-win straightjacket before the ALJ.

They did this by first filtering other

incidents, [e.g., the I.R.A. request

which had never distracted from good

evaluation after they surfaced, certain

189

limited teacher complaints by a handful

of malcontent, 3 of whom the Board had

directed West to get rid of, so-called

dictatorial acts of keeping staff from

the Board, notwithstanding the 16-month

age of such fact, even if true}. Then,

these Board members were able to testify

that they adjudged them to be true facts,

ergo reqardless of the actual truth, they

became justifications upon which to

abandon their trusting and communicative

relationship with West, ergo they had a

reasonable foundation upon which to

terminate West.

Noticeably, it was exactly this kind

of bootstrapping which was fatal to West

in the proposed decision. As his only

finding against West in the part of his

proposed decision labelled as findings of

fact, the ALJ found:

There has been a Significant

190

breakdown in the communication and

trust between Superintendent West

and the Buffalo Center-Rake

Community School District Board.

test t attested to

s W trus

between the Board _and the

Su inte . (Proposed decision,

p. 5, emph. supp. ]

Almost as noticeably, the ALJ did not

find as fact other alleged reasons for

termination, such as unprofessionalisnm,

dictatorial and intimidating management

style, transaction of business without

Board knowledge, action against Board

policy, or inability to comprehend and

manage schooi finances. In fact, the ALJ

did not even find as fact the alleged

reason for termination of an

unsatisfactory evaluation, perhaps being

sufficiently adroit as as to recognize

that the January, 1990 evaluations were

purely contrived.

(7) Despite certain adroitness on

i te

ee

191

the part of the ALJ, he nevertheless fell

prey to the jointly-implemented

prosecutorial strategy. He did not have

time to study the nuances and contexts of

the record, as hopefully has been done in

this brief. Consequently, Lipps and his

cohorts were quite successful in throwing

enough garbage on West that, right or

wrong, some of it stuck by mass of

stickiness. The ALJ then proposed a

decision, indubitably influenced strongly

by the notion that the contract could not

continue when 4 Board members testified

that it could not continue. Thereafter

it was a simple matter for these very

same 4 Board members to endorse and

incorporate the decision thus

"influenced". They simply had to believe

themselves, just as they had right from

the time of their earliest prejudgment.

With this overview in mind, it

192

should be plain that even if the Board

retained outside counsel and presented

its case to an outside judge, Aalgaard,

Brass, Hove, Smith, and Wessels, with the

conspiratorial services of Lipps, still

managed to subvert the process. That is,

assuming arguendo or not that they did

not participate actively and jointly in

the prosecution with Lipps, minimally

Aalgaard, Brass, Smith, and Wessels

placed themselves in the very unholy

position of self-judgment. This was a

fundamentally-untenable position upon

which to be ensconced:

A fair trial ina fair tribunal is a

basic requirement of due process.

Fairness of course requires. an

absence of actual bias in the trial

of cases. But our system of law has

always endeavored to prevent even

the probability of unfairness. To

this endno man can be a judge in

his own case and no man is permitted

to try cases where he has an

interest in the outcome....

It would be very strange if our

i aienineeeieeetenentnl

sii iia aaa

193

System of law permitted a judge to

act as a grand jury and then try the

very persons accused as a result of

his investigations.... Having been

apart of that process a judge

cannot be, in the very nature of

things, wholly disinterested in the

conviction or acquittal of those

accused. While he would not likely

have all the zeal of a prosecutor,

it can certainly not be said that he

would have none of that zeal. Fair

trials are too important a part of

our ee society to let prosecutin

judges be trial judges of the

charges they prefer....

AS a practical matter it is

difficult if not impossible for a

judge to free himself from the

influence of what took place in his

"grand-jury" secret session. His

recollection of that is likely to

weight far more heavily with him

than any testimony given in the open

hearings....

Thus the judge whom due process

requires to be impartial in weighing

the evidence presented before him,

called on his own personal knowledge

and impression of what had occurred

in the grand jury room and his

judgment was based in part on this

impression, the accuracy of which

could not be tested by adequate

cross-examination. In Re Murchison,

75 S.Ct. 623, 624-625, 349 U.S. 133,

136-138 (1955), (emph. supp. }.

Under these circumstances even

194

granting great weight to’ the

presumption of honesty and integrity

due the hearing officer in these

matters, I believe the combination

of [prosecutorial and adjudicative]

funct s e creates an

unconstitutorial risk of bias. The

hearing officer in preparing to

present the Department’s case must

become intimately familiar with its

facts. In presenting the case he

must act as an advocate and as such,

he must seek to present the

Department’s case in the best

possible _light for the

Department....

In my opinion, under these

circumstances, a "realistic

appraisal of psychological

tendencies and human weaknesses:,

cit., suggests that in the situation

conferring both adjudicative and

prosecutorial functions on the same

individual poses "such a risk of

actual bias or prejudgment that the

practice must be forbidden if the

guarantee of due process is to be

adequately implemented. Cit. Huber

Pontiac, Inc. v. Alphin, 431 F.Supp.

1168, 1172 (S.D. Ill. 1977), [emph.

supp. ]}.

It is obvious from the

emphasized portion of the quoted

statement there are instances when a

judge may or may not act as

prosecutor, judge and jury. The

Court in Murchison left open the

question when a judge may not act in

this manner. The question was

ee ee

195

answered at the federal level in

Wilson v. Lincoln Redevelopment

Corporation, 488 F.2d 339, 342-343

(8 cir. 1973), as follows:

wih, * * The critical

determination here in assessing the

charge of partiality of the

decisionmaker is whether in

wel j the evidence he is required

to call on his own personal

knowledge and impression of what

occurred. In such cases, the tenant

would be deprived of his right to

examine or cross-examine a crucial

witness and the decisionmaker would

become the arbiter of his own

credibility and fairness. Cits.

In the present case it was

es t : to ca upo

thei own ers knowledge _ and

smbression of ry Keith had done or

had failed to do because there were

no other witnesses. The board had

determined here from the very start

Keith’s performance as a teacher was

not up to the highest calibre. It

then called upon itself to judge the

credibility of or own determination

as to Keit erfo ce. We

cannot. soumcehand how . board in

t co fe | therwise

roman find itself to be —CY of

credible witnesses. Keith, supra, at

260, [emph. supp. ]

In this case, the main finding

against West was the "Significant

196

breakdown in the communication and trust"

with the Board. The 4 Board members

alone testified to that breakdown. They

then found themselves to be "credible

witnesses". As a matter of human nature,

West never had a chance to persuade them

otherwise. Accordingly, having been made

to appear before an unfair and partial

Board, "in violation of constitutional

and statutory provisions... vs his

"substantial rights have been

prejudiced... " §279.24, Code of Iowa

(1989).

x = = @

Divison VII

SECTION 272A.8, CODE OF IOWA (1989),

IS UNCONSTITUTIONAL TO THE EXTENT IT

REQUIRED WEST TO PAY FOR THE EXPENSES OF

HIS DUE PROCESS HEARING.

aati.

=e

197

When an administrator requests an

ALJ hearing under section 279.24, Code of

Iowa (1989), he is required by section

272A.8, Code of Iowa (1989), to pay half

its costs. Accordingly, section 272A.8

"is unconstitutional on its face because

it imposes a significant and unjustified

open-ended penalty on the exercise of a

constitutional right." Rankin 7.

Independent(sic) School District No. I-3,

876 F.2d 838, 841 (10th Cir. 1989).

Regardless of the outcome of this appeal

on other issues, West should be relieved

of having to pay for the hearing the

government constitutionally was required

to afford him.

Division VIII

THE TERMINATION PROCEDURES IN

SECTION 279.24 CODE OF IOWA (1989), ARE

UNCONSTITUTIONALLY VAGUE AND THUS VOID.

198

Section 279.24, Code of Iowa (1989),

establishes that there is a standard upon

which the decision to terninate must be

made. This standard arises from the

statutory language specifying that there

must be "specific reasons" stated "for"

it. Id. In the case of “administrators,

except superintendents", the standard is

"for just cause". In the case of

superintendents, the standard is "for" a

standard not enunciated.

The United States Supreme Court has

dealt with a similar statute. Giaccio v.

State of Pennsylvania, 86 S.Ct. 518, 382

U.S. $18 (1966). In that case, a

Pennyslvania statute directed a jury

which had acquitted a defendant to

"determine, by their verdict, whether the

county, or prosecutor, or the defendant

shall pay the costs... " S.Ct. at 519,

0.8. at ¢€60. The statute- offered no

199

standard under which to make this

determination.

Responsively, the United States

Supreme Court declared this’. statute

"invalid under the Due Process Clause

because of vagueness and the absence of

any standards sufficient to enable

defendants to protect themselves against

arbitrary and discriminatory imposition

of costs." Id., at 520, U.S. at 402. It

held the standards were insufficient

because the statute "contains no

Standards at all, nor does it place any

conditions of any kind upon the jury’s

power to impose costs... " ERs 5 BsGSx,

ac S2i, U.S. at 403.

Here, the same problem exists within

section 279.24. A school board is

directed to determine whether or not a

contract shall continue or discontinue.

It is even required inceptively to give :

200

specific reasons to be considered "for"

discontinuance. However, it is not given

any standard by which to locate the

demarcation. School board members

impermissibly "must make determination of

the crucial issue upon their own notions

of what the law should be instead of what

a is.* Giaceio, supra, &.Ct. at 521,

U.S. at 403. Therefore, the termination

procedures of section 279.24 are void for

vagueness, and West’s automatic renewal,

which is severable, see, §4.12, Code of

Iowa (1989), cannot be terminated.

DIVISION IX

THE SCHOOL BOARD APPLIED A NON-

EXISTENT OR UNDEFINED STANDARD TO THE

FACTS TO CONCLUDE THAT } & SHOULD

TERMINATE THE AUTOMATIC RENEWAL OF WEST’S

CONTRACT.

In its proposed decision submitted

to the ALJ, pp. 11-12, the Board wrote:

201

A School Board’s decision for non-

renewal of a Superintendent’s

contract only requires the

reasonable foundation to terminate.

Iowa Code Section 270.24; I.A.S.B.

Certified Employee Contract

Termination Procedure, p. 167

(1989), Wedergren . Board of

Directors, 307 N.W.2d 12, 20 (Iowa

1981).... The reasonable foundation

test... is less stringent than the

just cause standard...

West has examined the section 279.24

and Wedergren citations. After doing so,

he has found neither the term "reasonable

foundation", nor any indication of what

"reasonable foundation" might mean, nor

any indication that such "test... is less

stringent", nor any indication that the

Standard to be applied should be "less

stringent".

In his proposed decision, p. 27, the

ALJ adopted the Board’s standard and

citations. He did not further expand

the, but did quote from just cause

language before stating that: "Although

202

this is not a ‘just cause’ case, it is

clear that a School Board has the final

say as to how best to resolve a

disruptive situation provided there is a

reasonable basis for their decision."

{[emph. supp. ]} This statement too is

unsupported by citation.

In rebuttal, West argues that

without authoritative foundation and on

its face, the standard applied to the

facts of this case neither exists nor has

any meaning. As just one example of the

difficulties in application, West asserts

that it cannot even be ascertained from

the Board decision whether "reasonable"

means reasonable to an average citizen,

reasonable to an educational

professional, reasonable to an average

school board member, or reasonable to

some other benchmark person. Therefore,

the Board’s decision minimally has been

203

"(a)ffected DV ec error of law."

§270.24(5), Code of Iowa (1989).

To some extent, of course, this

argument is much like repeating the

argument in the preceding division. That

is, no one had any way of knowing what

the standard was. Consequently, the

Board and the ALJ could not possibly have

been expected to apply one with any

meaning and thus by ad hoc and murky

rationale, just applied "their own

notions" of an appropriate standard.

Giaccio, supra, S.Ct. at 521, U4. at

403. The difference, however, is that in

this division, West does not argue that

the statute is void, but rather that the

Board erred by applying a standard with

no meaning, with no lawful base, or both.

Beyond that argument, West

alternatively assumes arguendo that an

argument could be made that section

204

279.24 serves as some authority for

derivation of a meaningful standard.

Under that assumption, he_ states

that even though the - standard for

termination of superintendents is

something different than "just cause",

there is absolutely nothing in the

relevant statutory structure to suggest,

as the Board did without any citation,

that it is "less stringent" than just

cause. Quite the contrary, the pari

materia statutory structure suggests, if

anything, something more stringent.

Under chapter 270, Code of Iowa

(1989), there is a definite hierarchy of

procedural protection, vis a vis

employment security. This hierarchy

correlates almost identically to the

commonly-perceived importance of

positions within the school system, [as

level of compensation also so reflects],

205

and to longevity of employment to some

degree. The hierarchy is as follows:

(1) For non-certificated employees,

there is no procedural protection at all,

regardless of longevity. The janitors,

cooks, and bus drivers have no guaranteed

procedure by which to plead their cases.

(2) For probationary certificated

employees, there is the protection of a

“private hearing" before the school

board, but no appeal to an adjudicator or

court, "the board’s decision... being

final and binding... "™ §279.19, Code of

Iowa (1989).

(3) For probationary

administrators, there is the protection

of a "private conference with the board

to discuss the reasons for

termination..." but again "(t)jhe board’s

decision to terminate a probationary

administrator’s contract shall be

aa i ini

|

206

final..." §279.24, Code of Iowa (1989). ,

(4) For non-probationary teachers,

there is the protection of a full-blown

"private hearing" before the - school

board, plus an appeal to am adjudicator

on any of 3 grounds and an appeal to the

court on any of 7 grounds. §§279.15-

279.18, Code of Iowa (1989).

(5) For non-probationary

administrators, there is the protection

of a hearing such as for a wnon-

probationary teachers, but with the

further protection of it being first

before the buffer of a hopefully-neutral

administrative law judge whose decision

favorable to the administrator can be

allowed to stand. §279.24, Code of Iowa

(1989). There is also the same kind of

appeal from the board to the Court on any

of 7 grounds. Id.

Although obviously there is_ no

207

graduation of procedural protection

between superintendents and other

administrators, [either up or down], that

does not take away from the point that

the overall structure for school

employees is to grant greater procedural

protections for employees as they climb

the rungs on the employment hierarch. As

a corollary then, it would seem that the

higher an employee is in the hierarchy,

the more substantial the reason should be

before they are terminated: (a) non-

certificated employees have little

responsibility and may be terminated at

any time for any reason; (b)

certificated employees and administrators

have more responsibility and may be

terminated in a certain manner and only

for just cause; and (c) superintendents

have even more responsibility and may be

terminated in a certain manner and only

208

for something greater than just cause.

Moreover, if the standard were not

higher than just cause, it necessarily

would have to be lower than just cause.

Just cause is not that high a standard in

the first place. Briggs v. Board of

Directors of Hinton Community School

District, 282 N.W.2d 740 (Iowa 1979).

Accordingly, if lower than just cause,

what would be the point of going through

all the rigmarole of appointing an

independent administrative law judge,

hiring counsel, drafting findings of fact

and conclusions of law, reporting the

hearing, stating specific reasons, and

appealing to this Court on any of 7

possible grounds if the superintendent

simply was being afforded and opportunity

to contest nothing much at all?

Presumably, giving a superintendent a

chance to argue the "stated reasons" were

209

not "reasonably foundationed " or

reasonably based" could be accomplished

just as well as it is accomplished when

a(sic) administrator has "a private

conference with the board to discuss the

reasons for termination." §279.24, Code

of Iowa (1989). It certainly would not

require the rigmarole perceived as

necessary for just cause, and presumably

more.

IN THE SUPREME COURT OF IOWA

S.Ct. No. 91-1448

DON WEST,

Appellant,

vs. APPELLANT’S

BRIEF FILED

BUFFALO CENTER-RAKE IN APRIL,

SCHOOL DISTRICT, By 1990

Its BOARD OF

DIRECTORS,

Appellee.

210

ARGUMENT

Division I

THE TRIAL COURT ERRED BY FAILING TO

REQUIRE THE SCHOOL BOARD TO SUBMIT ITS

ENTIRE RECORD.

This issue was preserved for review

in West’s motion seeking such submission.

app., pp. 284-289. The scope or standard

of appellate review is for correction of

legal error.

As early as 9/89, but not later than

10/89, a majority of the Board

clandestinely reached a "consensus" that

West was not doing "an adequate job" as

superintendent and should be asked to

resign. app., pp. 145-151. In 10/89,

one of the majority members, a Phi Beta

Kappa college graduate, attended a

conference in which the termination

procedures, as well as the open meetings

a

DNs hs.

211

law, were covered. app., pp. 151-152.

In the first half of 11/89, half of this

majority consulted with legal counsel to

discuss how to terminate West’s contract.

app., pp. 156-157.

On 11/20/89, the Board met in a

Closed session preceded by no public

notice of the same. app., pp. 161-162.

Neither West, nor the public requested,

consented to, or participated in this

Closed session. app., pp. 162-163. The

Board was required to keep a verbatim

record of its closed sessions. §21.5(4),

Code of Iowa. During the ALJ hearing,

the Board offered testimony which

considerably downplayed the extent of

discussion or decisionmaking which had

occurred at this closed session. app.,

pp. 164-165.

By contrast, the transcribed

verbatim record reflected that the Board

212

effectively had considered whether or not

its continuing contract with West should

be terminated. app., pp. 211-227. The

members clearly were trying to "see what

conclusions we can come to... [and were]

looking into doing something about this

matter at this time." =o. , Pe “221,

emph. supp. Moreover, they evinced the

awareness that they might not be followed

lawful procedure in formulating their

plan to rid themselves of West, e.g.:

"This can’t be... an official vote or

anything, but... © <@mp., B. 222.

On 11/28/89, the Board again met in

a closed session. app., pp. 171-179.

During the ALJ hearing, the Board offered

testimony which portrayed the members at

this session as keeping an open mind

about termination and as merely

"suggesting" that West consider

termination. app., pp. 172-175.

RT ME a CRE ER kin ih

213

(Indeed, "suggested" was the very

characterization employed by the trial

court to describe the Board’s action.

app., p. 307.]

By bright contrast, however, the

transcribed verbatim record reflected an

outright fait accompli:

It is the f j of t majority of

the board that conditions have

deteriorated in our school system to

the extent that ac e

occur. Therefore, I must inform

you, Don, that there is not support

b Ww

your. contract for another year.

app-, PP. 229-230, emph. supp.

This statement by the Board president,

accompanied by the silent acquiescence of

the majority members present,

unequivocally demonstrated that by at

least that date, consideration of

termination had ripened into a decision

of termination, not merely a suggestion

of resignation.

On 12/18/89, the Board met in open

214

session. app., Pp. i182. During this

meeting, West was asked if had resigned

yet. app., p. 182. When West responded

"no", the Board unanimously passed a

motion creating a committee to consult

with legal counsel. aapp., p. 182. The

Board was required to keep the minutes

which showed this exchange. §21.3, Code

of Iowa. This committee seems to have

formulated and investigated the charges

against West. app., pp. 182-183.

On 1/3/90, on short notice, the

Board specially met in open’ session.

app., pp. 182-183. During this time, it

pretended a pre-orchestrated, premature,

and unsatisfactory evaluation of West,

not in accord with its own policies.

app., pp. 183-192. It also retained the

counsel, ("Lipps"), who continued

thereafter to implement’ the secret

termination decision. app., pp. 182-209.

215

On 1/10/90, again on short notice,

the Board unexpectedly and again

specially met in open session. app., pp.

192-193. Although the subject had never

been discussed publicly or been approved

as a discussion topic, the following was

listed on the Board’s agenda:

"Consideration of Terminating

Superintendent West’s Contract at the End

of its Term (Non-Renewal)." app., p.

a3.

The meeting again was pre-

orchestrated and filled with many

professions of the Board’s open-

mindedness. app., pp. 193-209. The

orchestration apparently was engineered

by the committee and Lipps. app., pp.

193-209. It revolved around extensive,

Widespread, and often-ancient questions

which were designed to discredit West,

regardless of whether or how he tried to

216

answer them, and which were impossible to

answer in any case without notice and an

opportunity to prepare. app., Pp. 193-

209. Nonetheless, at the ALJ hearing,

the Board offered testimony to the effect

that all the members really had wanted

waS a meaningful dialogue with West

before determining whether to initiate

termination proceedings. app., pp. 193-

209.

After reading the questions, but

before voting to consider termination,

the Board went into closed session,

purportedly to discuss with Lipps

imminent litigation strategy. app., pp.

203-204. In stark contrast to its public

posture, however, the Board members and

Lipps discussed the success of their

strategies to discredit West with the

public, to intimidate West into

resigning, and to stonewall the

217

advertised public forum. app., pp.

235248. They then went into’ open

session, attempted one more intimidation,

and stonewalled by immediately voting to

consider the termination they long ago

had fixed. app., pp. 203-209.

On 1/29/90, the Board issued a

formal notice of termination to West.

app., DP. 32. On 4/30/90, at the end of

the formal administrative proceeding

initiated on 1/10/90, the Board again

retreated into closed session, supposedly

"to deliberate and decide whether or not

to terminate", supposedly on the evidence

in the administrative record and on

West’s 4/26/90 exceptions. app., pp. 58-

62. In sharp contrast, however, the

Board spent a minimal 13 minutes avoiding

the evidence and the exceptions and

scheming how to speed up the foregoing

termination conclusion with an immediate

218

removal of West. app., pp. 58-62. With

minimum comment, they also approved and

Signed a pre-prepared decision by Lipps.

app., pp. 58-62. Of course, they could

not discuss an evidentiary record which

they never had transcribed and which no

members had witnessed completely during

the hearing process, some members not at

all. app., p. 57.

With the preceding backdrop in full

view, the trial court determined that it

would not require the Board to submit for

its review any record which antedated the

1/29/90 termination notice. app., pp.

293-294. Thereby, it effectively

eliminated from consideration the

11/20/89, 11/28/89, and 1/10/90 Board

closed session verbatim records, as well

as the 12/18/89 minutes. app., pp. 293-

294. It also determined that it would

not require the Board to submit for its

219

review the 4/30/90 closed session

records. app., p. 294.

The expressed presupposition for

these determinations was tthe trial

court’s conclusion that its review was

limited to "the board action" described

in the section 279.24, unn. 4913, 14,

Code of Iowa, and that "action" was

construed "to mean the decision of the

Board to terminate... " app., Pp. 293.

Notwithstanding its self-limitation to

the decision, however, it then proceeded

to hold “that the logical starting point

for" reviewing the decision was looking

at the record compiled subsequent to the

vote to consider termination. app., P.

293. Unfortunately though, beyond an

inapposite Wedergren citation, it really

gave no insight into why the point it

selected to start the record was

"logical". app., pp. 293-294.

a as

220

The term "board action" is undefined

in section 279.24, but there is an

analogue in chapter 17A, Code of Iowa.

such analogues having been recognized

judicially. See e.g., Board of Directors

of Fairfield Community School District v.

Justmann, 476 N.W.2d 335, 338 (Iowa

1991); Briggs v. Board of Directors of

Hinton Community School District, 282

N.W.2d 740, 743 (Iowa 1979); but see,

Jones v. Loess Hills Area Education

Agency 13, 319 N.W.2d 263, 264 (Iowa

1982). The analogue reads as follows:

"Agency Action" includes the

whole or a part of an agency rule or

other statement of law or policy,

order, decision, license,

proceeding, investigation, sanction,

relief, or the equivalent oor a

denial thereof, or a failure to act,

or any other exercise of agency

discretion or failure to do so, or

the performance of any agency duty

or the failure to do so. §17A.2(9),

Code of Iowa, [emph. supp.].

Such "action" has been defined

221

expansively: "We believe it is. so

embracive that there is little the Board

could do which would be excluded."

Allegre _v. Iowa State Board of Regents,

319 N.W.2d 206, 208 (Iowa 1982).

Obviously, "action" is not limited to the

decision alone. That is, it also

includes the "proceedings" and related

“duty performances or failures" inhering

in the final decision, viz. "the

continuance or discontinuance of the

administrator’s SOontract.... *

notification of which triggers the

statutory time for appeal. §279.24, unn.

GGq1i2, 13, Code of Iowa.

Of course, as previously noted, even

though the trial court held that action

meant decision, it also included in its

meaning all those proceedings between the

written notification that termination was

being considered and the written

: |

222

notification that termination had been

decided. Thus, the battle line now

exists along the lines of the ‘logic" the

trial court alleged, but never explained.

In major part, appellate review here

is for the purpose of determining the

lawfulness of the Board’s proceedings.

§279.24, unn. 94§14(1)(2)(4)(7), Code of

Iowa. Such proceedings commence when

"the board determines that it should

consider the termination of a

nonprobationary administrator’s

contract... " §279.24, unn. 44, Code of

Iowa. They are the only proceedings by

which such a continuing contract can be

terminated. id., wen. Gi. Once the

proceedings are commenced, "the following

procedure shall apply.... " if., 94,

femph. supp.]. "’(Sjhall’ imposes a

duty." §4.1(36) (a), Code of Iowa.

The "following procedures" embrace

223

specified due process requirements prior

to the Board’s formulation of the

termination decision. §279.24, |FG5-11,

Code of Iowa; see __also, Keith v.

community School District of Wilton, 262

N.W.2d 249, 258 (Iowa 1978); Kruse v.

Board of Directors of Lamoni Community

School District, 231 N.W.2d 626, 630-631

(Iowa 1975). Even if it subsequently

affords the due process procedure

specified, when a board makes a decision

to terminate without first affording such

procedure, the decision to terminate is

still unlawful and invalid. id., at 632-

634.

Here, the trial court was well aware

that West frequently had protested the

Board’s unlawful procedure, (or should

have been if it truly had "reviewed the

entire record on 3m... © as

represented, app., p. 295]. As one of

)

:

:

224

many examples, at the 4/26/90 hearing

before the Board, West’s counsel had

denoted that by deciding and orally

communicating its decision to terminate

before formally voting to consider to

terminate, the Board "in essence reversed

the statutory procedure for terminating

an administrator... " app., p. 58. Such

protests appeared in the record that the

Board had been willing to submit. app.,

p. 58.

Moreover, by foundationed tender,

the trial court further was confronted

with verbatim proof that no later than

11/20/89, the Board had determined to

consider termination. app., p. 286; see

also, Dillon v. City of Davenport, 366

N.W.2d 918, 922 (Iowa 1985), [decision

may be reached by "consensus of

opinion"]. Therefore, from all that was

in its plain view, the trial court was

225

not at all "logical" in starting the

record for review at any place other than

from the point at which the Board

actually decided to consider termination.

This was the point of beginning. This

was the point at which at least the

review under Kruse, supra, had to beqin.

see also, division VII, infra.

Likewise, it was not at all

"logical" to exclude any portion of the

proceedings’ thereafter. The trial

court’s cited authority does not stand

for the proposition that the record of

what happened at a closed session is

irrelevant or immaterial to issues

raised, such as whether the Board acted

as an impartial decisionmaker or violated

the open meetings law or its own policy.

Wedergren v. Board of Directors, 307

N.W.2d 12, 18-19 (Iowa 1981). As the

Supreme Court has held, "[{w)jhile section

226

28A.5 provides specific direction

concerning the preservation of the

occurrences in a closed session and

details the extent to which the minutes

may be disclosed, it does not specify

that the discussions acquire the status

of confidential communications which are

privileged from any use other than that

specified." Dillon, supra, at 921.

Furthermore, if the 4/30/91 session

was in fact a “private hearing not

subject to chapter 21.... " §279.24,

unn. 910, Code of Iowa, [a proposition of

some doubt], then any "record" of it was

merely “exempt from the provisions of

chapter 22." id., unn. 912. Being "not

subject" and "exempt", this document

resultingly was neither a sealed closed

session record, not a public record, nor

a confidential public record. §§21.5(4),

22.1, 22.7, Code of Iowa. It was simply

227

a record of the proceedings, unencumbered

by any statutory restrictions.

In reality then, \‘ the 4/30/90

recording and detailed stabi were no

different than the written termination

decision and the 4/26/90 private hearing

transcript which also were "not subject"

and "exempt". §279.24, unn. 4410, 12,

supra. Accordingly, it seems extremely

telling that the Board had no hesitation

to submit and the trial court had no

hesitation to review and reply on the

decision and the 4/26/90 transcript, yet

both violently resited the submission of

a record of equal status which lent to

the disclosure of the true, albeit

distorted decisionmaking process.

Apparently, the truth was a little

interest to either the Board or the trial

court.

228

Division II

THE TRIAL COURT ERRED BY FAILING TO

PERMIT THE SUBMISSION OF FURTHER EVIDENCE

AND BY REQUIRING EXCISION OF ANY

REFERENCES TO SUCH EVIDENCE IN WEST’S

BRIEF.

In division I, supra, West argued

that proof of what transpired after the

Board started considering termination of

his continuing contract was per _se part

of the record for appellate review. In

this division, he further argues that

even if such proof was not per se part or

the record, it should have been permitted

to become part of the record. This issue

was preserved in the following-described

parts of the record.

When West sought to compel a

production request for the 11/20/89 and

11/28/89 closed session tape recordings,

229

the ALJ held that he did "not have the

authority to order the production and/or

disclosure of the minutes. or tape

recordings... for the reason that only a

District Court of Iowa may do so... "

app., pp. 34-35. During the hearing,

when West again tried to compel

production, he again was rebuffed for

approximately the same reason. 3/14-

15/90 hear. tr., pp. 152-159,235-237, tr.

ct. rec.

When, however, West subsequently

sought to submit evidence of the closed

session tape recordings on appeal, app.,

pp. 8-17, the trial court created a

"Catch-22". It held that since it had

only appellate jurisdiction, it too did

not have the authority to receive any

evidence. app., pp. 19-20.

The trial court further held that

even if it had the authority, it would

= |

230

exercise discretion not to receive

additional evidence because West had "had

full and adequate opportunity to develop

his factual record in the administrative

proceedings’ below." app., p. 20.

Needless to say, in light of the record,

West waS surprised greatly by this

holding.

West next tried to correct the trial

court’s seeming misapprehension of the

record by highlighting the impossibility

of placing the later 4/30/90 record in

evidence at either the earlier 4/26/90

private hearing or at the earlier 3/14-

15/90, 3/22-23/90, or 3/29-30/90 ALJ

hearing. GOB., - DBs 22+ He further

brought to the trial court’s attention

the places in the record where he had

attempted unsuccessfully to compel

production of the earlier records. app.,

pp. 23-24.

231

In resistance, the Board supposed

that these records were not relevant and

could be used and obtained by West only

in a §21.6 enforcement proceeding, and

hypocritically denied "that it has

misrepresented the record of the closed

meetings." app., p. 272. It also moved

to strike West’s brief because it

contained an appendix of and references

to the record, [the submission of which

West had assumed would be allowed].

app., pp. 270-271. In reply, West

outlined the relevance of the records

offered. app., pp. 273-279.

In spite of West’s presentations,

the trial court doggedly stood by its

prior position that West had had an

adequate opportunity to present this

evidence in the administrative

proceedings, [even apparently the 4/30/90

record which had not then been in esse].

232

app., pp. 280-282. It supported this

position by observing that since West had

been permitted to question Board members

and could have obtained the records by

discovery if he had commenced a §21.6

lawsuit, there had been an "ample

opportunity". app., pp. 280-282. It

further concluded that the tape

recordings were irrelevant in any event.

app., p. 282. Finally, Judge Mackey

forced West to the unnecessary expense of

revising his comprehensive brief, so as

to excise all hint of the evidence

disallowed. app., p. 283.

Because of the trial court’s

alternate holdings, the scope and

standard of appellate review is both for

correction of legal error and abuse of

discretion.

The trial court did not analyze

section 279.24 in any palpable way.

233

Rather, it twice mouthed the naked notion

that it could not receive evidence

because it exercised only appellate

jurisdiction. app., pp. 19-20, 280-282.

Such a notion, however, was no substitute

for a displayed rationale and certainty

was no response to the analysis conveyed

by West. See, app., pp. 8-17.

West’s analysis was and is as

follows. See, app., pp. 8-17. Unlike

contested case and teacher termination

proceedings, section 279.24 neither

defines the record to be compiled, nor

circumscribes the record to be reviewed

by the district court. Compare,

§§17A.12(5) (8), 17A.19(7), 279.15-279.18,

Code of Iowa. Further, section 279.24,

unn. 414, is virtually identical to

section 279.18, unn. 42, except that it

does not prohibit the district court from

hearing further evidence or empower it to

234

remand for the taking of further

evidence. The exception in these pari

materia statutes thus implies "that a

change of meaning was intended." Singer,

2A Sutherland Statutory Construction,

§§51.01, 51.02, 59.02 (Sands 4th Ed. 1984

Rev.) ; Barnes Vv. Iowa Department of

Transportation, 385 N.W.2d 260, 262-263

(Iowa 1986).

The most likely "change" inferable

is that because of the purposeful

ommission, the district court may do that

which it is not prohibited from doing,

namely take additional evidence. AS a

corollary, it is noted that statutory

delineation of the record and

delimitation of the review to that record

were Significant components of a

statutory construction prohibiting

additional evidence. Council Bluffs

Community School District v. City of

235

Council Bluffs, 412 N.W.2a 171, 172-174

(Iowa 1987). Consequently, it may be

deduced that without those components,

there would have been no prohibition.

id.

Furthermore, permissive §279.24

construction is buttressed by the

distinction between use of the term

"judicial review" in sections 17A.19 and

279.18 and use of the term "appeal" in.

section 279.24. In education law, appeal

has connoted an evidentiary hearing on

appeal from a school board decision.

§§290.1 et seq., Code of Iowa.

Alternatively, the omitted language

and the use of the term "board action" in

section 279.24 may not imply an unlimited

receipt of additional evidence. Rather,

it may imply a power similar to that

"({ijJn proceedings for judicial review of

agency action, [not contested case, in

236

which] a court may hear and consider such

evidence as it deems appropriate."

§17A.19(7), Code of Iowa. Ironically,

such an implication brings the argument

around full circle to the division I

concept that the whole record of the

procedures actually pursued by the Board,

as well as the actions actually taxen,

should have been subjected t o review:

We reject the contention that the

language of section 17A.19(7)

authorizing a court to hear and

consider "such evidence as it deems

appropriate" provides authority to

challenge “other agency action"

based on a claimed absence of

Substantial evidentiary support.

The taking of evidence in the

district court pursuant to the

quoted language must, we believe, be

for the limited purpose of

highlighting what actually occurred

in the agency so as to facilitate

the court’s search for errors of law

or unreasonable, arbitrary or

capricious action. Cit. Such

evidence is not to be utilized to

demonstrate that the agency’s action

is unsupported by substantial

evidence in the record made before

the agency. Sheet Metal

Construction of Iowa v._ Commissioner

237

of Insurance of State of Iowa, 427

N.W.2d 859, 867, fn. 3 (Iowa 1988).

Regardless of the statutory

construction and the record composition

rules which are adopted ultimately, West

asserts that the trial court’s attitude

to the receipt of the proposed evidence

is quite appalling. At every turn, Judge

Mackey seemed most intent on punishing

West and/or his counsel, even to the

petty point of dictating the brief

revision of evidence references which

easily could have been disregarded, in

the same manner equity courts disregard

evidence taken subject to objections.

Even more ominously, this attitude seemed

to have been intent on stifling the truth

with technicalities.

It just does not make sense to

postulate that West could have commenced

a §21.6 enforcement proceeding for the

238

purpose of discovering the closed session

tape recordings, [or should have had to

do so}. Even if incurring the expense

and entanglement of further litigation

should be a superintendent’s obligation,

there is no likelihood that this

litigation would produce the recordings

in a timely fashion. Although time was

extended here by cooperation, the

statutory scheme for termination does not

contemplate that there usually would be

sufficient time to pursue a §21.6

litigation. Jones _v. Loess Hill Area

Education Agency 13, 319 N.W.2d 263, 264

(Iowa 1982). Moreover, West could not

have Known about the extensions which

occurred as the case progressed, except

by crystal ball. He should not be

prejudiced in the future by hindsight.

Furthermore, in such an enforcement

proceeding, a superintendent cannot

239

advance his own need for the tape

recordings and detailed minutes in the

§279.24 proceeding. §21.5(4}, Code of

Iowa. Rather, all he can advance is the

“probative value (of them) as evidence in

the enforcement proceeding ei. 2 See.

and then only after weighing that value

against "the prejudicial effects to the

public interest of the disclosure... "

Such a standard hardly affords’ him

personalized relevancy and materiality

arguments.

Similarly, it does not make sense to

postulate that because West had an

Opportunity to examine Board members

about what occurred at the’ closed

session, he had been afforded an adequate

replacement for the best evidence

recordings. At the time of the ALW

hearing, West had no means of knowing or

testing whether Board members’ were

240

portraying accurately the 11/20/89

discussion. Indeed, it happened that

they were not. Patenrly then,

testimonial confrontation alone was not

adequate.

Finally, it did not make sense for

the trial court to put on blinders, by

excision and otherwise, under the guise

of irrelevancy. On their face, the

closed session records demonstrated that

the Board considered and decided

termination before invoking the procedure

required by section 279.24. On their

face, the closed session records

demonstrated actual prejudgment by the

Board of the termination issue. On their

face, the closed session records

demonstrated violations of the open

meeting statute, as well as_ Board

policies on the same. On their face, the

closed session records demonstrated

241

violations of Board policies concerning

superintendent evaluation, chain-of-

command, etc. On their face, the closed

session records demonstrated how the

Board had maneuvered to manufacture the

charges against West, so as o manipulate

the politics of the situation.

Ergo, it seems painfully apparent

that this critical evidence, cum record,

was so extremely relevant that if the

trial court did not perceive such

relevancy, it either willed itself to

ignore the evidence, as well as the

connected issues favorable to West, or

committed blatant errors of legal

misperception.

Preface to Divisions III - VIII

Throughout the administrative

proceedings, West repeatedly challenged

the Board for not acting as a fair and

impartial tribunal. app., pp. 36, 38-40,

242

42-43, 56-58. Despite these challenges,

the Board neither denied them, nor made

any response to them in the record,

{including in its formal decision].

app., pp. 58-61. Before the trial court,

West perpetuated the challenges. 1/15/91

prief, Giv. I & if, te. Gt. vec.

To the extent the challenges

envelope constitutional issues, they

"require an independent evaluation of the

totality of evidence from which the

assertion of unconstitutionality arises.

Evidence relevant to that issue is

reviewed do novo." Iowa - I inois Gas

and Electric Company _v. Iowa State

Commerce Commission, 412 N.W.2d 600, 604

(Iowa 1987). Otherwise, the appellate

court reviews for correction of error,

thereby applying the standards of section

279.24, Code of Iowa.

Citing Wedergren, the trial court

243

seems to have assumed that West had a

constitutional due process right to a

fair and impartial tribunal. app., PD-

311. As argued in division VIII, infra,

West concurs that such a right exists.

However, he also distinguishes that

Wedergren served as no basis for the

assumption.

West’s case involves the non-renewal

of a continuing contract. The cited

authority, on the other hand, involved

the termination of a stated-term

contract. Wedergren .. Board of

Directors, 307 N.W.2d 12, 15 (Iowa 1981).

Under past interpretations of Iowa

property law, there have been no

constitutional due process rights made

available in a contract non-renewal

proceeding. Keith v. Community School

District of Wilton, 262 N.w.2d 249, 257

(Iowa 1978).

244

Even though no constitutional due

process rights have been made available,

nonetheless, statutory due process rights

have been implied in the analogous

teacher termination law, sections 279.15-

279.18, Code of Iowa. Keith, supra, at

259-262. Consequently, given that both

the teacher termination provisions and

the §279.24 provision require notice

detailing reasons and an opportunity to

prepare and be heard, there appears to be

every reason to assume the same

implication may be made in §279.24.

One of the implied rights is the

right ~ to a fair and impartial

decisionmaker. That right is deemed

violated in the following situations:

(1) When the decisionmaker "has a

special interest in the outcome... " of

the case to be decided;

(2) When the decisionmaker has

actual bias against the person whose case

is being adjudged;

245

(3) When the decisionmaker acts as

both prosecutor and judge;

(4) When the decisionmaker acts as

both witness and judge, at least to the

extent of adjudging its own credibility

as a witness;

(5) When the decisionmaker "’has

prejudged the case... ‘'";

(6) When the decisionmaking

procedure itself does not satisfy the

appearance of justice because it offers

"a possible temptation to the average

person as a judge * * * not to hold the

balance nice, clear, and true between

the... " prosecutor and the accused.

id.

However, the right is not deemed

violated in the situations in which a

decisionmaker acts as ae preliminary

investigator or is charged with the

responsibility of prosecution, but

retains another to prosecute. ;” ae |

261; Wedergren, supra, at 200. In such

Situations, the decisionmaker is entitled

to a presumption of honesty and

objectivity which may not be rebutted by

the "mere exposure to evidence" or to

246

prosecutorial activities outside the

proceedings. Wedergren, id.; Van Krog

Vv ° u j ° the n-

Cc -Liscom S istrict,

298 N.W.2d 339, 344 (Iowa 1980); Larson

v. Oakland Communi School District, 416

N.W.2d 89, 95 (Iowa App. 1987); Hartwig

v. Board of Nursing, 448 N.W.2d 321, 324

(Iowa 1989); Board of Dental Examiners v.

Hufford, 461 N.W.2d 194, 200 (Iowa 1990);

Eaves _v. Board of Medical Examiners, 467

N.W.2d 234, 236-237 (Iowa 1991);

Fairfield Community School District v.

Justmann, 476 N.W.2d 335, 339 £(Iowa

1991).

Such a presumption may be rebutted

by a showing of actual bias or of an

unacceptable risk of actual bias. id.

Further, "{i]n construing our state due

process clause, we have also adopted a

presumption of objectivity in decision

247

making among administrative adjudicators,

which is, however, somewhat more easily

rebutted than the presumption utilized by

the federal courts." Justmann, supra, at

339-340. With regard to both the

presumption and the risk, a decisionmaker

must make a self-examination for bias and

consider disqualification. Bishop v.

Keystone Area Education Agency Number a

275 N.W.2d 744, 752 (Iowa 1979).

Further, such a decisionmaker should make

a record statement concerning whether or

not this has been done, the statement and

presumably lack of it both being

probative. oO Vv. a fe) Gucation of

Nashu it S District, 334

N.W.2d 765, 769 (Iowa App. 1983).

The presumption of bias from certain

identified risks of bias is afforded as a

counterweight to the presumption of

objectively because:

248

Concededly, a "fair trial ina fair

tribunal is a basic requirement of

due process." Cit. This applies to

administrative agencies which

adjudicate as well as to courts.

eS. Not only is a biased

decisionmaker constitutionally

unacceptable but “our syste: of law

has always endeavored to prevent

even the probability of unfairness."

Cisse. In pursuit of this. end,

various situations have been

identified in which experience

teaches that the probability of

actual bias on the part of the judge

or decisionmaker is too high to be

constitutionally tolerable. Withrow

Vv. Larkin, 95 S.Ct. 1456, 421 U.s.

35, 46-47, 43 L.Ed. 2nd 712 (1975),

[emph. supp.].

2 2 2 @

The presumption of honesty is a

presumption that officials will make

every effort to act impartially and

will disqualify themselves when they

believe that this is not possible.

The significance attached to the

possibility of self-disqualification

is an analogue of the significance

of the presumption of honesty in

assessing the risk of bias. Each

depends on the adjudicator’s ability

to recognize and thereby prevent his

biases from affecting his decision.

Even if it is presumed that

adjudicators will make every effort

to be impartial and will disqualify

themselves when they believe that

this is not possible, the

bias

es.

Because the individual adjudicator

may be able to detect biases hidden

to the outside world, self-

disqualification is allowed.

Because one’s biases may be hidden

from oneself, however, the safeguard

fe) ualificati s a

su te ingui j i ‘

are closed on a subject, even more

reluctant to_admit it to others, and

publicly.... Thus, although self-

disqualification and the presumption

of honesty may have some bearing on

the risk of a biased adjudicator,

they should not be heavily relied

upon to insure fairness. Note, Due

Process and the Combination of

Administrative Functions: A

Balancing Approach, 63 Iowa L. Rev.

1186, 1204-1205 (1978).

In Iowa, the identified risks of

by a quasi-judicial body have

encompassed or synonymized the appearance

of impropriety, as well as impropriety

itself:

| ) ;

250

Canon 2 of the Code of Judicial

Conduct provides that "{a} judge

should avoid impropriety and the

appearance of impropriety in all his

activities." (Emphasis added.) We

believe the agency personnel charged

with making decisions of great

import, as in this case, should be

guided by this rationale. Antsey v.

Iowa State Commerce Commission, 292

N.W.2d 380, 390 (Iowa 1980).

Indeed, quasi-judicial bodies may be

required to adhere to more strict

propriety and appearance than that to

which judges must adhere:

Adjudiciation is that agency

process resembling the action of a

court when it decides a typical

case.... In the performance of this

adjudicatory function, the parties

whose rights are involved are

entitled to the same _ fairness,

impartiality and independence of

judgment as are expected in a court

of law. Cit. Although procedures

and rules of evidence are less rigid

in quasi-judicial bodies than in

courts, there can be no difference

under our concept of justice between

the two tribunals in respect of

these fundamental requirements.

Cit.

\

It has been suggested in a

proceeding of this kind, because of

its informality and the absence of

251

many of the safeguards thrown around

court proceedings, the rigid

requirement that the trier be

impartial and unconcerned in the

result should be applied more

strictly. Cits....

We determine there are compelling

considerations, including the basic

considerations of fairness, which

demand ex parte communications

between members of county boards of

adjustment who are exercising their

adjudicatory functions and

interested parties should not occur.

Rodine v. Zoning Board of Adjustment

of Polk County, 434 N.W.2d 124, 126-

27 (Iowa App. 1988).

As a final prefatory comment, West

notes the importance of examining the

impartiality of each Board member. The

contract of a superintendent may be

terminated only "by a majority vote of

the membership of the board... *

§279.24, Code of Iowa, [emph. supp.]

Here, a "majority vote" was 4, there

being a Board "membership" of 7. Only 6

members voted for termination. app., p.

61. Accordingly, if 3 of them were not

252

fair and impartial decisionmakers, the

termination should be reversed and the

contract reinstated. ter of Water

Community School District, 338 N.W.2d

153, 156 (Iowa 1983). Further, even if

only 1 or 2 are disqualified as unfair

and partial decisionmakers, then the case

still should be remanded for

decisionmaking free of their influence,

[if not too late to do so}. Cinderella

Career and Finishing Schools, Inc. v.

Federal Trade Commission, 425 F.2d 583,

592 (D.C. Cir. 1970).

Division III

THE TRIAL COURT ERRED BY FAILING TO

ADDRESS AND RESOLVE THE ISSUE OF WHETHER

TH; TERMINATION VOTES OF TWO BOARD

MEMBERS SHOULD HAVE BEEN’ INVALIDATED

BECAUSE OF THE UNACCEPTABLE BIAS RISK OF

PERSONAL ASPERSIONS.

253

As one of the integrated termination

charges to be considered, the Board

enumerated that:

Superintendent West has made many

derogatory remarks... about

individual Board Members. He has

stated that Denny Wessels was "too

dumb to pour piss out of a shoe" and

that he "cheated his way through

college." He called Erling Aalgaard

"a tight screw". app., p. 51.

Lipps thereafter presented evidence to

support those charges. app., pp. 122-

aa3:. He also presented evidence that

West had called the Board "the worst

board he’d ever worked with." app., p.

i222. The Board, including members

Aalgaard and Wessels, then passed on this

evidence, app., pp. 59-61, found as fact

that West had made such derogatory

remarks, app., pp. 50-51, and concluded

inter alia that they formed a reasonable

foundation to terminate existed because:

The record establishes that there

has been a breakdown in

254

communication between Superintendent

West and the School Board, poor

communications between

Superintendent West and staff

members, and that Superintendent

West has lost the trust of the

majority of the Board of Directors

of the Buffalo Center-Rake Community

School District. app., p. 54.

The United States Supreme Court has

held that the situation "in which the

adjudicator has... been the target of

personal abuse or criticism from the

party before him.... “" is one of the

"various situations... identified in

which experience teaches that the

probability of actual bias on the part of

the judge or decisionmaker is too high to

be constitutionally tolerable." Withrow

v. Larkin, 95 S.Ct. 1456, 1464, 421 U.s.

35, 46-47, 43 L.Ed.2d 712 (1975).

The derogatory remarks which

Aalgaard and Wessels openly avowed that

West had made about them were "highly

personal aspersions" of the kind which

acacia

255

disqualified them _ from sitting in

judgment:

Many of the words leveled at the

judge ir the instant case were

j as ions, even

"fighting words" - "dirty

sonofabitch", "dirty tyrannical old

dog," "stumbling dog," and

"SOGk sca. * ults kind

are apt to strike "at the most

vu ab and hum ualities of a

judge’s temperament." ro

mayberry v. Pennsylvania, 91 s.Ct.

499, 505, 400 U.s. 455, 465-466

(1971).

Again then, this disqualification was

mandated not by a showing of actual bias,

but rather upon aeshowing of an

unacceptable risk of bias:

In making this ultimate judgment the

inquiry must be not only whether

there was actual bias on

respondent’s part, but also whether

there was "such a likelihood of bias

or an appearance of bias that the

judge was unable to hold the balance

between vindicating the interests of

the court [school board) and the

interests of the accused." eit .

"Such a stringent rule may sometimes

bar trial by judges who have no

actual bias and who do their very

best to weigh the scales of justice

equally between contending parties,"

256

but due process of law requires no

less. Taylor _v. Hayes, 94 S.Ct.

2697, 2704-2705, 418 U.S. 488, 501,

41 L.Ed. 897 (1974).

This precise position was argued to

the trial court. 1/15/91 brief, pp. 194-

i996, tr. ct. rec. The trial court,

however, failed to address or resolve the

attendant issue. app., pp. 306-309.

This failure was error, as was the error

in not determining that as a matter of

law, the termination votes of Aalgaard

and Wessels were invalid.

Division IV

THE TRIAL COURT ERRED BY FAILING TO

ADDRESS AND RESOLVE THE ISSUE OF WHETHER

THE TERMINATION VOTES OF TWO BOARD

MEMBERS SHOULD HAVE BEEN INVALIDATED

BECAUSE OF THE UNACCEPTABLE BIAS RISK OF

PRIOR STATEMENTS ON THE MERITS.

During the ALJ hearing, West placed

257

into evidence corroborated testimony that

prior to the 1989 school board election,

Wessels assisted Smith in his successful

campaign, and Smith campaigned publicly

with such remarks as "West is the

problem, he’s got to go." app., pp. 132-

135. This testimony extended to remarks

after the campaign. app., p. 134. Both

Smith and Wessels testified during this

hearing, but neither denied the

corroborated testimony placed into

evidence by West. app., p. 134.

In Wedergren v. Board of Directors,

307 N.W.2d 12, 17 (Iowa 1981), the Iowa

Supreme Court cited with approval Staton

vy. Mayes, 555 F.2d 908 (10th Cir. 1977).

In the cited case, a school board member

had remarked in his campaign that 2 other

members had said "that no progress could

be made until there was a new

superintendent... [and] it had become

258

apparent to hin, (the campaigning

member], that the trouble lay with the

superintendent... " 28... @¢ 913. In

this opinion, the Circuit Court held that

all 3 members were disqualified:

The first public statements before

the hearing by defendant Mayes for

the removal of Dr. Staton, and the

discussions by defendants Moore and

Wade as admitted, reveal a tribunal

not meeting the demands of due

process for a hearing with fairness

and the appearance of fairness.

Cits. These were not the mere

statements on a policy issue related

to the dispute, leaving the

decisionmaker capable of judging a

particular controversy fairly on the

basis of its own circumstances.

Cit. _ Nor rose this Pigg os a case of

the vesti es and a

statement of a aus an

investigatory phase by the body that

will later decide the merits of the

charges. Cits.

Instead this case involves

statements on the merits by those

who must make factual determinations

on contested fact issues of alleged

incompetence and willful neglect of

duty, where the fact finding is

OFEEEORS. «6S ks os

We are mindful of the reference in

the trial court’s opinion to the

259

testimony by each defendant that

they voted to dismiss plaintiff

based on the evidence presented at

the hearing, and that plaintiff had

failed to establish that he was

denied procedural due process.

j ~

they require proof at the hearing

and b the

proof, the evidence is

Moore and Wade as well. We are

convinced that these established

Circumstances left no room for a

determination that there was a

decision by a fair tribunal, with

i , in view

of the totality of the

circumstances. 2)?

We do not say that such statements

in an election campaign or between

members were unlawful or improper.

However, a due process principle is

bent too far when such persons are

then called on to sit as fact

finders and to make a decision

affecting the property interests and

liberty interests of one’s

reputation and standing in his

profession. Id., at 914-915, [emph.

supp. ]

Here, Smith and Wessels did not even

attempt to disclaim Smith’s_ prior

proclamations of predisposition which

260

were made before the Board’s termination

consideration. Resultingly, there was

even less “room for a determination that

there was a decision by a fair tribunal,

with the appearance of fairness... " id.

This precise position was argued to

the trial court. 1/15/91 Brief, pp. 197-

199, tr. ct. rec. The trial court,

however, failed to address or resolve the

attendant issue. app., pp. 306-309.

This failure was error, as was the error

in not determining that as a matter of

law, the termination votes of Smith and

Wessels were invalid.

Division V

THE TRIAL COURT ERRED BY FAILING TO

INVALIDATE THE TERMINATION VOTES OF FOUR-

FIVE BOARD MEMBERS BECAUSE OF THEIR

PROVEN PREJUDGMENT.

261

In 9/89 or 10/89, Board members

Aalgaard and Wessels were busy

telephoning the other members to elicit

their feelings on what to do about West.

app., pp. 146-148. Board member Brass

participated in this networking meetings.

app., pp. 146-148. Board member Jensvold

participated, understood that the members

were being polled, and “at some point was

made aware that they had the majority of

votes." app., pp. 148-149.

On 11/20/89 Board members Aalgaard,

Hove, Smith, and Wessels attended a

secret meeting to discuss what to do

about West. app., pp. 161-171, 211-227.

They all made some very’ definite

statements about their dissatisfactions

with West and their’ beliefs and

commitments that he had to go. app., pp.

161-171, 211-227.

On 11/28/89, Board members Aalgaard,

262

Brass, Hove, Smith, and Wessels again

attended a secret meeting, this time to

inform West directly that a majority of

the Board felt "a change needs’ to

occur... and that there is not support

from the board to be able to renew your

contract for another year." app., pp.

171-178, 227-231.

On 1/3/90, Board members Aalgaard,

Brass, Hove, Smith, and Wessels attended

a special meeting to which they brought

pre-prepared evaluations of West. app.,

pp. 184-192. The meeting was held on

short notice. app., pp. 184-192. It was

not the customary time of the year to

evaluate West. app., pp. 184-192. ae

was not proper policy to evaluate West

without his consent. app., pp. 184-192.

Finally, despite the fact that’ the

composite figures from the individual

evaluations did not total an

263

enastiateotory result and despite good

evaluations just 9 months previous, each

of these 5 members voted for a motion

"that based on the evaluations of Supt.

West conducted on this date... that his

performance be deemed unsatisfactory."

app., p. 189.

On 1/10/90, the same 5 board members

attended another special meeting called

on short notice. app., pp. 193-209.

Each participated in the orchestrated

performance conducted by Aalgaard and

Lipps in an effort to discredit West

publicly. app., pp. 193-209. Smith

participated too in the _ performance

preparation. app., p. 201. Each voted

to "reaffirm the unsatisfactory

evaluation". app., pp. 206-207. Only

Board member Jensvold abstained because

"TI didn’t feel like I had _= enough

information to make a good decision... "

264

app., p. 207.

During the ALJ hearing, Board member

Aalgaard, Brass, Smith, and Wessels

testified. app., pp. 38-40. Wessels

"summarize(d]} the reasons why... [he]

think[{s]} Mr. West’s contract should be

terminated and why the board viewed his

performance unsatisfactory." app., Dp.

39. Brass and Smith testified that their

present opinions were that the 10

termination charges were "valid". app.,

pp. 39-40. Aalgaard testified that he

had reached the "conclusion" that it

would be difficult to work with West.

app., p. 38.

In the termination proceedings,

Lipps had the burden to prove the

termination charges. E.g., Board of

Education of Fort Madison Community

School District v. Youel, 282 N.W.2d 677

(Iowa 1979). However, he was relieved of

ee

265

this burden by any decisionmaker

prejudgment:

Prejudgment is a _ preconceived

point of view that affects the

weight of evidence presented at the

hearing....

A trier of fact is charged with

resolving adjudicative facts on the

basis of a preponderance of the

evidence presented. This

requirement is premised on the

notion that an impartial adversary

hearing is the most accurate method

of resolving adjudicative facts....

A preconceived view about

adjudicative facts creates the

danger that the adjudicator will not

be persuaded by the weight of the

evidence presented at the hearing

sufficient to persuade the impartial

adjudicator. In other words, it

creates the danger that the parties

will not have a meaningful

opportunity to persuade the

adjudicator. Disqualification is

therefore required if there exists

an unacceptable risk that’ the

preconceived view of adjudicative

facts will shift the burden of proof

prescribed by law. Note, Due

t j j of

Administrative _ Functions: A

Balancing Approach, 63 Iowa L. Rev.

1186, 1193-1195 (1978).

Atypically, the trial court

addressed the prejudgment issue. app.,

266

pp. 306-309. Typically, however, it only

brushed the issue’s surface. app., pp.

306-309. Moreover, it did not even

address the glaring expressions of

prejudgment by the 4 members as

witnesses. app., pp. 306-309. That is,

although generalizing "that the board was

fair and impartial", app., p. 309, the

trial court did even allude to the fact

that the Board majority’s testimonial

prejudgment, unquestionably prominent on

the record, served as the ALJ’s following

primary evidentiary basis for proposing

the termination which this same majority

then adopted a month later as

decisionmakers:

There has been ae_— significant

breakdown in the communication and

trust between Superintendent West

and the Buffalo Center~-Rake

Community School Board. Each School

Board member who testified at the

hearing attested to such a breakdown

or lack of trust between the Board

and the Superintendent. app., Pp.

aie ieeeeieeee

267

53; see also, app., p. 52.

Because of the natural consequences

of error, see divisions I & II, supra, it

is possible to comprehend why the trial

court did not grasp the absolute clarity

of the 11/28/89 prejudgment. It is even

barely possible to comprehend how the

trial court could have ignored the

Significance of the "consensus" and

"evaluations" as forms of prejudgment.

However, it is completely impossible to

comprehend how the trial court could have

minimalized a combination of the

consensus, so-called "suggestion" to

resign, evaluations, and opinion

testimony to an innocuous "knowledge of

incidents which seriously called into

question West’s performance as

Superintendent..." app., p. 309.

It was plain error for the trial

court to have so minimialized. Far from

268

being just "some exposure... to facts in

dispute... " the consensus, the 11/28/89

statement, the evaluation, and the

opinion testimony, individually or in

combination, constituted overwhelming

"evidence that a board has preju

This text is long and has been trimmed here. Open the source document for the complete record.