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2011 S.D. 45
IN THE SUPREME COURT
STATE OF SOUTH DAKOTA
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SIOUX FALLS INDEPENDENT
SCHOOL DISTRICT #49-5,
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APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
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HONORABLE WILLIAM J. SRSTKA, JR.
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JOHN R. PEKAS
Sioux Falls, South Dakota
ROLLYN H. SAMP of
Samp Law Firm
Sioux Falls, South Dakota
Attorneys for appellant.
ANTHONY M. HOHN
SANDRA HOGLUND HANSON of
Davenport, Evans, Hurwitz
& Smith, LLP
Sioux Falls, South Dakota
Attorneys for appellee.
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ARGUED APRIL 26, 2011
OPINION FILED 08/03/11
GILBERTSON, Chief Justice.
Matt Onnen was terminated from an administrative position at
Southeast Technical Institute (STI), an entity of the Sioux Falls School District. He
appealed the decision, arguing that it was arbitrary and capricious and an abuse of
discretion. The trial court, Judge William J. Srstka, Jr., affirmed the decision to
terminate. Onnen appeals Judge Srstka’s determination. Onnen also alleges that
Judge Srstka was biased in the proceedings and should have granted his motion for
a new trial. We affirm.
Onnen began working for STI in 2003. In August 2005, he was hired
as STI’s registrar under a written contract. He continued his employment under
annual written contracts. As registrar, Onnen was responsible for ensuring
students met all the graduation requirements before receiving a degree.
Onnen’s supervisor, Jim Rokusek, was informed in August 2007 that a
student had received a degree despite failing to meet all of the graduation
requirements. After investigation, Rokusek discovered that 12 additional students
had improperly received degrees and STI’s records incorrectly reflected that the
students were graduates. Thereafter, Rokusek met with Onnen and others to
discuss the degree errors. Onnen admitted he knew as early as June 2007 that six
or seven degrees had been sent out incorrectly and that he had personally issued
three of them. A work-study student sent out the other degrees while Onnen was
on annual leave. Onnen denied knowing of any other improperly conferred degrees.
Onnen said that he had called some of the students who received an improperly
conferred degree to inform them they had not graduated, but he did not keep a list
of who he reached. Onnen admitted that he had not informed his superiors of the
errors. As a result, STI suspended Onnen for three days with pay so that STI could
conduct a more thorough investigation. Onnen was given a memorandum stating
that he had a right to prepare a written response to the suspension, which he did
During Onnen’s suspension period, STI commenced an investigation to
determine the scope of degree errors and how to address the problem. STI officials
found that 15 more improperly conferred degrees or diplomas were approved and
awarded by Onnen the previous year, bringing the total to 28. They also discovered
40-50 students were entitled to a degree or diploma, but had not received one.
Finally, they found out that over 250 students had not been verified for graduation
at all, though the task should have been done months earlier.
Personnel from STI met to discuss the investigation results. Due to
the magnitude of Onnen’s errors, his refusal to take responsibility for the errors,
and lack of effort to rectify the situation, they agreed Onnen should be terminated.
On August 30, 2007, Onnen was given a Notice of Termination of Employment,
effective immediately. The Notice outlined the investigation results and explained
the severity of the errors and negative effect they could have on STI and its
students. The Sioux Falls School Board (Board) affirmed the decision on September
10, 2007. On September 17, 2007, Onnen submitted a complaint to Sioux Falls
School District #49-5 (District) Superintendent Dr. Pamela Homan, alleging that he
had been wrongfully terminated. Onnen appealed the District’s and Board’s
decision of termination to circuit court. He argued that the decision to terminate
him was arbitrary and capricious and in violation of public policy. He also argued
that the procedure utilized by the District in terminating him was illegal. After a
three-day trial, Judge Srstka affirmed the District.
After trial, Onnen moved for a new trial and for Judge Srstka’s recusal
from hearing the motion for a new trial. Presiding Judge Kathleen Caldwell denied
Onnen’s motion for Judge Srstka’s recusal from hearing the new trial motion.
Ultimately, Judge Srstka denied Onnen’s motion for a new trial.
On appeal, the issues presented are:
Whether Judge Srstka erred in concluding that the District’s
decision was not arbitrary and capricious, or an abuse of
Whether Judge Srstka abused his discretion in denying Onnen’s
motion for a new trial because of his alleged bias.
STANDARD OF REVIEW
SDCL 13-46-6 allows a party to appeal a school board decision:
The trial in the circuit court shall be de novo according to the
rules relating to special proceedings of a civil nature so far as
such rules are applicable and not in conflict with the provisions
of this chapter and the court shall enter such final judgment or
order as the circumstances and every right of the case may
require and such judgment or order may be enforced by writ of
execution, mandamus, or prohibition, or by attachment as for
In Blondo v. Bristol School District #18-1, we explained that “[d]espite the ‘de novo’
language of this statute, this Court has long held that the standard of review is not
that traditionally used in an ordinary trial de novo. Instead, great deference is
given to the good faith determinations of school boards whether to renew a teacher’s
contract.” 2007 S.D. 8, ¶ 11, 727 N.W.2d 306, 309 (citing Wuest v. Winner Sch.
Dist. 59-2, 2000 S.D. 42, ¶ 12, 607 N.W.2d 912, 915; Jager v. Ramona Bd. of Educ.,
444 N.W.2d 21, 25 (S.D. 1989)). Furthermore, we have repeatedly stated that:
The circuit court’s review is not a trial de novo in the ordinary
sense of the phrase. School boards are creatures of the
Legislature and the judiciary may not interfere with their
decisions unless the decision is made contrary to law. Therefore,
as long as the school board is legitimately and legally exercising
its administrative powers, the courts may not interfere with nor
supplant the school board’s decision making process. Only the
legality of the decision, not the propriety of the decision, may be
reviewed by the courts. The legality of a school board’s decision
is determined by a two-prong review. First, the procedural
regularity of the decision is reviewed. This review includes
whether the school board was vested with the authority to act
and whether all procedural requirements required by law were
followed. Second, the school board’s decision is reviewed to
determine whether the decision was arbitrary, capricious or an
abuse of discretion.
Hicks v. Gayville-Volin Sch. Dist., 2003 S.D. 92, ¶ 10, 668 N.W.2d 69, 73 (citing
Gauer v. Kadoka Sch. Dist. No. 35-1, 2002 S.D. 73, ¶ 5, 647 N.W.2d 727, 730).
Whether Judge Srstka erred in concluding
that the District’s decision was not arbitrary and
capricious, or an abuse of discretion.
Judge Srstka found that Onnen was an at-will employee and was not
part of any bargaining unit. Onnen argues that he was not an at-will employee
because he had an employment contract for a specified term. As part of his
argument that he was not an at-will employee, Onnen contends that Judge Srstka
misapplied SDCL 60-4-4, which provides: “An employment having no specified term
may be terminated at the will of either party on notice to the other, unless
otherwise provided by statute.” Onnen argues that SDCL 60-4-4 means that “a
specified term is all that is needed by the plain language of the statute to take the
employment out of the at will category.”
In this case, it is not necessary to determine whether Onnen was an at-
will employee, because even if he is correct, his employment contract allowed him to
be terminated for cause. It provides in part:
Employee agrees to devote his/her utmost skill to the
performance of the duties to be assigned by the District . . . and
in all respects to faithfully comply with, obey and enforce all of
the policies, rules and regulations of the District. . . . The
parties acknowledge that the District may terminate or suspend
Employee’s employment, or discipline Employee, all as provided
by South Dakota statute, by the policies and regulations of
District, and/or by the negotiated agreement of any employee
group authorized to enter into collective bargaining for
Employee. Any such termination, discharge or discipline may
result in the discontinuance or suspension of compensation to
Judge Srstka concluded that the District had cause to terminate
Onnen. Judge Srstka found that “[t]he unofficial transcripts of the students who
had failed classes or not completed classes and were still awarded diplomas or
degrees despite not meeting graduation requirements support the school board’s
decision to dismiss Onnen.” Further, he found that Onnen’s own documents
purporting to track diplomas and degrees “show inconsistencies and incomplete
work by Onnen.” Judge Srstka also found that Onnen did not inform his supervisor
of the errors. Based on these findings, Judge Srstka concluded that the “[Board’s]
decision was not arbitrary, capricious or an abuse of discretion” and “there is
relevant and competent evidence showing support for the action taken.”
Onnen agreed in his employment contract “to devote his utmost skill to
the performance of the duties to be assigned by the District . . . and in all respects to
faithfully comply with, obey and enforce all of the policies, rules and regulations of
the District.” The findings support the District’s contention that it had cause to
terminate Onnen because he failed to comply with this contractual requirement.
Onnen has not shown any of Judge Srstka’s findings to be clearly erroneous. We
therefore affirm this issue.
Onnen Was Not Denied Procedural Due Process
Onnen argues he was denied procedural due process when he was
terminated because SDCL 13-39-65 required that he be given 60 days’ notice before
termination. SDCL 13-39-65, which is in the chapter governing vocational and
technical education, provides:
The continuing contract provisions set forth in §§ 13-43-9.1 to
13-43-11, inclusive, do not apply to any person employed in a
public postsecondary technical institute. At least sixty days
prior to the termination of an employee in a postsecondary
technical institute, the governing board shall notify in writing
the employee of such termination.
Specifically, Onnen argues the statutes referenced in SDCL 13-39-65 have been
repealed and are therefore a nullity. He urges this Court to consider only the
second sentence of the statute.
Judge Srstka noted that the provisions set forth in SDCL 13-43-9.1 to -
11 were repealed in 1995. They related to notice to tenured teachers of intent not to
renew contracts, availability of evaluation files, circumstances after notice,
evaluation, and notice of deficiencies. Judge Srstka found that the statutes
referenced only applied to teachers. Reading the statutes in pari materia, he said
“it appears that SDCL 13-39-65 was also intended to apply only to teachers.”
Further, “if 60 days’ notice [was] required to terminate any at-will employee, such
as a registrar, secretary, janitor, and others, the meaning of at-will employment in
the context of employment at a technical school such as STI would be completely
obliterated.” Consequently, Judge Srstka found that SDCL 13-39-65 did not apply
to Onnen. In the alternative, he found that even if SDCL 13-39-65 did apply,
Onnen would not be entitled to relief by reinstatement.
We agree. To determine legislative intent, this Court will take other
statutes on the same subject matter into consideration and read the statutes
together, or in pari materia. Loesch v. City of Huron, 2006 S.D. 93, ¶ 8, 723 N.W.2d
694, 697. We have recognized:
The object of the rule of pari materia is to ascertain and carry
into effect the intent of the legislature. It proceeds upon the
supposition that the several statutes were governed by one spirit
and policy, and were intended to be consistent and harmonious
in their several parts and provisions. For purposes of
determining legislative intent, we must assume that the
legislature in enacting a provision has in mind previously
enacted statues relating to the same subject matter. As a result,
the provision should be read, if possible, in accord with the
legislative policy embodied in those prior statutes.
Id. (citing State v. Chaney, 261 N.W.2d 674, 676 (S.D. 1978)). Although the statutes
referenced in SDCL 13-39-65 have been repealed, they do indicate the legislative
intent at the time the statute was enacted. As Judge Srstka noted, those statutes
related exclusively to teachers. Reading the statute as a whole, the only conclusion
is that SDCL 13-39-65 governed notice only to teachers. Because Onnen was not a
teacher at STI, he was not entitled to 60 days’ notice before termination.
Whether Judge Srstka abused his discretion in denying Onnen’s
motion for a new trial because of his alleged bias.
“The decision to grant a new trial is left in the sound judicial discretion
of the trial court” and the “decision will not be disturbed absent a clear showing of
abuse of discretion.” Sherburn v. Patterson Farms, Inc., 1999 S.D. 47, ¶ 8, 593
N.W.2d 414, 416. Onnen moved for a new trial based on “ex parte communications
Judge Srstka had received from a major witness [Rokusek] for the Defendant.”
Rokusek posted a message on Judge Srstka’s Facebook page wishing him a happy
birthday in Czech. The Facebook post occurred while this case was pending but
before Rokusek testified. Onnen also argues that Judge Srstka should have recused
himself because two relatives within the third degree of relationship were
employees of the District.
Onnen’s motion for Judge Srstka’s recusal from hearing his motion for
a new trial was denied by Presiding Judge Caldwell. Judge Caldwell found that
Onnen had already submitted to Judge Srstka’s jurisdiction, that Onnen had
waived the right to request recusal, and that Onnen’s “allegations regarding
Facebook usage or distant relatives . . . do no rise to a level that would require
recusal of a judge from hearing a case.” Onnen did not appeal Judge Caldwell’s
Judge Srstka then heard and denied Onnen’s motion for a new trial.
He noted that he was not biased by any ex parte communication by Rokusek
wishing him a happy birthday on his Facebook page. Judge Srstka also stated he
was not affected by his relative working for the school district, as she was a teacher
at an elementary school and had no interest in the case. He indicated he did not
know of a second relative working for the District.
Ex Parte Communication
The District argues that the Facebook post was not, by definition, an
“ex parte communication” because it was not related to any court action. Rather, it
was only incidental contact between Judge Srstka and a witness and was not
related to the case itself. The District is correct. Canon 3(B)(7) of the Code of
Judicial Conduct provides that a “judge shall not initiate, permit, or consider ex
parte communications, or consider other communications made to the judge outside
the presence of the parties concerning a pending or impending proceeding . . . .”
SDCL 16-2-appx-c3(B)(7) (emphasis added). The plain language of Canon 3(B)(7)
indicates that ex parte communications are a violation of the Canon when they
concern “a pending or impending proceeding” and are not otherwise allowed. Onnen
makes no allegation that the Facebook post in any way concerned his proceeding.
Even if the Facebook post was considered an ex parte communication,
Onnen still cannot demonstrate that it warrants a new trial. In State v. Thorsby,
2008 S.D. 100, 757 N.W.2d 300, we considered an ex parte communication
allegation where a clerk improperly placed a note in the defendant’s file regarding
her conduct towards the clerk. The note amounted to an ex parte communication to
the judge. Id. ¶ 13, 753 N.W.2d at 304. We stated that “where an ex parte
communication is not invited or initiated by the judge, reversible error occurs only if
the adverse party is prejudiced by an inability to rebut the facts communicated and
if improper influence appears with reasonable certainty.” Id. (citing O’Connor v.
Leapley, 488 N.W.2d 421, 423 (S.D. 1992)).
In this case, Judge Srstka did not invite or initiate the Facebook post
by Rokusek. Judge Srstka noted that the post was only one of many and that he did
not personally know Rokusek. Furthermore, Judge Srstka did not connect the post
to Rokusek even after he testified. Judge Srstka also stated that “Rokusek’s
message is not related to this case, and it did not affect my decision-making, as I did
not know it occurred.” The post did not relate to any facts regarding the case and
certainly not to any facts Onnen would need to rebut. Also, there is no indication in
the record that Judge Srstka was improperly influenced by the post.
Judge Srstka Was Not Required to Disqualify Himself Because of Relatives
Onnen argues that Judge Srstka should have disqualified himself
pursuant to Canon 3(E)(d)(iii) of the South Dakota Code of Judicial Conduct, which
provides in part:
A judge shall disqualify himself or herself in a proceeding in
which the judge’s impartiality might reasonably be questioned,
including but not limited to instances where . . . the judge or the
judge’s spouse, or a person within the third degree of
relationship to either of them or the spouse of such a person . . .
is known by the judge to have a more than de minimis interest
that could be substantially affected by the proceeding, but the
judge shall disclose such de minimis interest to the parties[.]
SDCL 16-2-appx-c3(E)(d)(iii). Onnen, citing Olson v. Merrill Lynch, Pierce, Fenner
& Smith, Inc., 51 F.3d 157, 159 (8th Cir. 1995), states that “when a person is in the
judicial position of finding the facts and interpreting the law, non-disclosure of
matters that must be disclosed pursuant to the applicable rules is a showing of
evident partiality by that person, especially when that non-disclosure ‘creates an
impression of possible bias.’”
We have previously stated that “the decision to preside over a case is
addressed to the sound discretion of the trial judge.” Hickmann v. Ray, 519 N.W.2d
79, 80 (S.D. 1994) (citing State v. Lohnes, 432 N.W.2d 77, 80 (S.D. 1988)). “The
judge is entitled to consult his own mind and he, perhaps better than anyone else,
knows whether or not he can give a party a fair and impartial trial in every way.”
Id. (citing Tri-State Refining v. Apaloosa Co., 452 N.W.2d 104, 107 (S.D. 1990)).
Judge Srstka unequivocally stated that he was not affected by the casual greeting
from Rokusek or his family member’s employment as a kindergarten teacher.
Furthermore, Judge Srstka stated: “I gave the parties a fair and impartial trial, and
a new trial is not warranted.” Additionally, Judge Srstka’s sister-in-law was one of
approximately 3,500 District employees and not in a management position. Onnen
has not shown how this connection could even be considered de minimis. We
conclude that Judge Srstka did not abuse his discretion in denying Onnen’s motion
for a new trial.
Because there was cause to terminate Onnen, the decision was not
arbitrary and capricious or an abuse of discretion. Onnen was not denied
procedural due process when he was terminated. Finally, Judge Srstka did not
abuse his discretion in denying Onnen’s motion for a new trial. We affirm.
KONENKAMP, ZINTER and SEVERSON, Justices, and
MEIERHENRY, Retired Justice, concur.
Matt Onnen was terminated from the position of registrar at Southeast Technical Institute (STI), an entity of the Sioux Falls School District, after STI officials found several degrees or diplomas had been approved and awarded by Onnen to students who had not earned them, and several students entitled to a degree or diploma had not received one. The Sioux Falls School Board affirmed the decision. Onnen appealed the District's and Board's decision to circuit court, which affirmed the District. On appeal, the Supreme Court affirmed, holding (1) the district court did not err in concluding that the District's decision was not arbitrary and capricious or an abuse of discretion; (2) because Onnen was not a teacher at STI, he was not entitled to sixty days' notice before termination, and therefore Onnen was not denied procedural due process when he was terminated; and (3) the district court did not abuse its discretion in denying Onnen's motion for a new trial.
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