Lester v. Mount Vernon-Enola School Dist.

Gary D. LESTER v. MOUNT VERNON-ENOLA SCHOOL
DISTRICT

95-873                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 18, 1996


1.   Schools & school districts -- Teacher Fair Dismissal Act --
     strict compliance with notice provisions required -- failure
     to comply strictly with act. -- Since 1989 the General
     Assembly has required strict compliance with the Teacher Fair
     Dismissal Act; holding a termination hearing fewer than five
     days after appellant's request was submitted constituted
     failure to comply strictly with Ark. Code Ann.  6-17-
     1509(c)(1) (Repl. 1993).

2.   Statutes -- strict compliance with procedural requirements may
     be waived. -- In other contexts in which the General Assembly
     has stated a strict-compliance requirement, it has been held
     that such compliance may be waived.

3.   Waiver -- requires knowledge of right on part of party alleged
     to have waived it. -- The waiver of a right requires knowledge
     of that right on the part of the party alleged to have waived
     it; the relinquishment of the right must be intentional.

4.   Schools & school districts -- Teacher Fair Dismissal Act -- no
     evidence that appellant was aware of his right to have hearing
     no fewer than five days after his request -- no waiver of
     right -- case reversed and remanded. -- Where there was
     evidence that appellant knew of some, if not most, of his
     rights under the Teacher Fair Dismissal Act, the supreme court
     found no evidence in the record that he was aware of his right
     to have the hearing no fewer than five days after his request;
     absent evidence of the requisite knowledge on appellant's part
     of the right purportedly waived, the supreme court could not
     hold that he waived it; the case was reversed and remanded to
     the trial court for entry of an order consistent with the
     opinion.


     Appeal from Faulkner Circuit Court; David L. Reynolds, Judge;
reversed and remanded.
     Roachell Law Firm, by: Travis N. Creed, for appellant.
     Brazil, Adlong, Murphy & Osment, by:  William C. Brazil and
Amy Brazil, for appellee.

     David Newbern, Justice.*ADVREP4*


GARRY D. LESTER                    95-873
                                   Opinion Delivered:  3/18/96
                                        
          Appellant

     v.                            Appeal from Faulkner
                                   County Circuit Court

MOUNT VERNON-ENOLA SCHOOL          Honorable David L. Reynolds,
DISTRICT                           Circuit Judge

          Appellee                 Reversed and Remanded





                David Newbern, Associate Justice

     This is a Teacher Fair Dismissal Act case.  The Act is found
at Ark. Code Ann.  6-17-1501 through 6-17-1510 (Repl. 1993). 
Garry Lester appeals the decision of the Faulkner County Circuit
Court which affirmed the decision of the Mount Vernon-Enola School
Board (the Board) to terminate his teaching contract.  Mr. Lester
contends the Board's hearing in response to his request to review
the Superintendent's termination recommendation was not held within
the time period prescribed by the Act.  Mr. Lester made additional
arguments, but as we agree with his point on the timing of the
hearing, we need not address them.  We reverse and remand the case
for further proceedings.
     The incident which led to Mr. Lester's termination occurred on
Friday, August 26, 1994.  It involved the use of inappropriate
language by Mr. Lester during a homeroom class period he
supervised.  
     During the weekend following the incident, Mr. Lester learned
that parents of students who had been present during his admitted
indiscretion and the superintendent, Mr. Bakker, did not approve of
his conduct.  On Friday night, a parent confronted Mr. Lester and
expressed his displeasure with the language that was used during
his child's homeroom class.  Then, on Sunday night, Mr. Lester
received a call from Mr. Bakker, who informed him he was not to
report for his bus driving or for teaching duties.  Mr. Bakker also
told Mr. Lester to report to his office on Monday.
     Mr. Lester met with Mr. Bakker and Mr. Guffy, the principal of
the high school on Monday, August 29, 1994.  He was informed  of
the complaints received from parents concerning the "joke" he told,
and that as a result, they were going to recommend the termination
of his contract to Board.  On September 2, 1994,  Mr. Lester
received the following written notice from Mr. Bakker:

          You are hereby notified that you are suspended with pay,
     effective immediately and that I intend to recommend that your
     contract with the Mount Vernon-Enola School District be     
terminated.  The reasons for my recommendation are as follows:   
The use of inappropriate language to teenage female students.
          You have the right to a hearing on this recommendation
     before the school board.  If you desire a hearing, you must
     make a request for same, in writing to may office, within
     thirty days of your receipt of this letter.  The hearing will
     be held at the next regular school board meeting following the
     receipt of your request for a hearing, unless a later date is
     agreed to in writing.  
          If you request a hearing, you have the right to be
     represented by the person of your choice, and if you so
     request in writing, a record of the hearing will be preserved
     and a transcript will be provided to you at no cost.

     After receiving the written notice from Mr. Bakker, Mr. Lester
talked with each of the five members of the Board to ascertain how
each would vote on Mr. Bakker's recommendation.  Mr. Lester
believed at least three would vote against termination.  Mr. Lester
testified that the President of the Board, Owen Leach, recommended
that in light of the three favorable votes, the hearing should take
place as soon as possible so Mr. Lester could get back to the
classroom.
     Mr. Lester sought the advice of his brother, Bobby Lester, 
Superintendent of the Pulaski County Special School District. 
Bobby Lester testified he told his brother he should hire an
attorney and take the issue to the Board.  Bobby Lester also
advised his brother to wait the full 30 days allowed by the Act
before requesting a hearing, as that would allow time to continue
receiving pay and to attempt to resolve differences with the
parents of his students.
     Despite Bobby Lester's advice, on September 4, 1994, Garry
Lester hand-delivered a letter to the Board in which he requested
a hearing before the Board "as soon as possible."
     On September 8, 1994, four days after Mr. Lester gave notice
that he wanted a hearing, a special meeting of the Board was called
for a hearing on Mr. Bakker's recommendation.  The Act requires
that any such hearing "shall take place not less than five (5) days
nor more than ten (10) days after the written request has been
served on the board, except that the teacher and the board may, in
writing, agree to a postponement of the hearing to a later
date:..."   6-17-1509(c)(1).  The Board voted 3-2 to uphold Mr.
Bakker's recommendation.  Mr. Lester appealed to the Circuit Court
where he argued that the action of the Board violated the law
because the hearing was held too early.
     In affirming the Board's decision, the Court recited the
following conclusion, among others:

          5.  Plaintiff waived his right to strict compliance for
     a hearing to be held not less than 5 (five) nor more than 10
     (ten) days when he requested the hearing to be held as soon
     as possible.  No objection was made and the Plaintiff was   
     not prejudiced by the action of the district.
          
     Mr. Lester correctly argues that since 1989 the General
Assembly has required strict compliance with the Teacher Fair
Dismissal Act.  Holding the hearing fewer than five days after his
request was submitted constituted failure to comply strictly with
 6-17-1509(c)(1). 
     Prior to 1989, we recognized that "substantial compliance"
with the Act was sufficient.  See Murray v. Alteimer-Sherrill
Public Schools, 294 Ark. 403, 743 S.W.2d 789 (1988).  In 1989,
however, the General Assembly enacted Act 625, which amended the
Act and added this sentence to  6-17-1503:

          A nonrenewal, termination, suspension, or other
     disciplinary action by a school district shall be void
     unless the school district strictly complies with all
     provisions of this subchapter and the school district0's
     applicable personnel policies.

See also Western Grove School District v. Terry, 318 Ark. 316, 885 S.W.2d 300 (1994).  
     Mr. Lester contends that, by finding that he waived the
statutory time period by requesting a hearing "as soon as
possible," and by finding that he was not prejudiced by the timing
of the hearing, the Trial Court engaged in a substantial compliance
analysis, which contravenes the intent of the General Assembly.  In
addition to citing Mr. Lester's letter, the Board notes that Mr.
Lester made no objection to the timing of the hearing.
     In other contexts in which the General Assembly has stated a
strict compliance requirement it has been held that such compliance
may be waived.  Davlin v. State, 313 Ark. 218, 853 S.W.2d 882
(1993); Winters v. Lewis, 260 Ark. 563, 542 S.W.2d 746 (1976).  The
question here, however, is whether waiver occurred.  The evidence
does not support the Trial Court's finding of waiver of the minimum
(5-day) period between request and hearing.
     In every case of which we are aware, we have held that a
waiver of a right requires knowledge of that right on the part of
the party alleged to have waived it.  In Bethell v. Bethell, 268
Ark. 409, 597 S.W.2d 576 (1980), we quoted from Continental Ins.
Cos. v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978), our standard
statement on the subject as follows:

          Waiver is the voluntary abandonment or surrender by a
     capable person of a right known by him to exist, with the
     intent that he shall forever be deprived of its benefits.  It
     may occur when one, with full knowledge of material facts,
     does something which is inconsistent with the right or his
     intention to rely on that right. ...  The relinquishment of
     the right must be intentional. ...

That case involved waiver of the right to alimony by failure to
request it.  Other cases in which we have uttered the same or
similar language in various contexts include Ingram v. Wirt, 314
Ark. 553, 864 S.W.2d 237 (1993); Worth v. Civil Service Comm'n, 
294 Ark. 643, 746 S.W.2d 346 (1988); and Mobley v. Estate of
Parker, 278 Ark. 37, 642 S.W.2d 883 (1982).
     While there is evidence that Mr. Lester knew of some, if not
most, of his rights under the Act, we have carefully combed the
record for any evidence that he was aware of his right to have the
hearing no fewer than five days after his request.  We found no
such evidence.  
     We might speculate that Mr. Lester would have wanted the
hearing held as soon as possible even if he had been aware of his
right to have it no fewer than five days after his request.  A
holding to that effect or a holding that the Trial Court's finding
that there was a waiver implied the necessary knowledge would,
however, completely evade the issue and subvert the General
Assembly's strict compliance requirement and obvious intention that
a "cooling off" period occur in these cases.  It would also mock
our earlier decisions requiring evidence of knowledge as a
predicate for waiver.  The same would be true if we based
affirmance on the failure of Mr. Lester to object to violation of
a rule of which there is no evidence he was aware.  Absent evidence
of the requisite knowledge on Garry Lester's part of the right
purportedly waived, we cannot, in accordance with our precedent,
hold that he waived it.
     We remand the case to the Trial Court for entry of an order
consistent with this opinion.
     Reversed and remanded.