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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1108%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 861

## Text

~,

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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1108%3A2. Public record. Not legal advice.