David Small v. James E. Cottrell et al.

Annotate this Case
David SMALL v. James E. COTTRELL et al.

97-644                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 12, 1998


1.   Schools & school districts -- nonrenewal of teacher's contract -- standard
     of review of school board decisions. -- The determination not to
     renew a teacher's contract is a matter within the discretion
     of the school board, and the circuit court cannot substitute
     its opinion for that of the board in the absence of an abuse
     of discretion by the board; it is not the appellate court's
     function to substitute its judgment for the circuit court's or
     the school board's; the appellate court will reverse only if
     it finds on review of the trial court's decision that the
     court's findings were clearly erroneous.

2.   Schools & school boards -- Teacher Fair Dismissal Act -- appellate court's
     duty to determine procedural compliance. -- It is the appellate
     court's responsibility to determine whether there has been
     procedural compliance under the Teacher Fair Dismissal Act.  

3.   Statutes -- construction -- plain-meaning rule. -- When required to
     review a statute, the supreme court first looks to the plain
     language of the statute; when the statutory language is clear
     and unambiguous, the court follows the plain meaning of the
     words rather than interpreting it.

4.   Schools & school districts -- Arkansas Public School Employee Fair Hearing
     Act -- purpose. -- The General Assembly promulgated the Arkansas
     Public School Employee Fair Hearing Act to protect
     noncertified school employees' rights to notice and
     opportunity to be heard by providing a reasonable hearing
     procedure when termination or nonrenewal is imminent.

5.   Schools & school districts -- Arkansas Teacher Fair Dismissal Act -- strict
     compliance with notice and hearing provisions required. -- The Arkansas
     Teacher Fair Dismissal Act requires strict compliance with all
     its provisions.

6.   Schools & school districts -- Arkansas Public School Employee Fair Hearing
     Act -- legislature omitted requirement of strict procedural compliance --
     standard of substantial compliance applicable. -- Where the General
     Assembly amended the Arkansas Public School Employee Fair
     Hearing Act to include a provision that noncertified school
     employees were no longer employees at will but omitted the
     requirement of strict procedural compliance for noncertified
     employees covered under the Act, the supreme court held that,
     absent contrary legislative directive, substantial compliance
     was the applicable standard under the Act.

7.   School & school districts -- Arkansas Public Employee Fair Hearing Act --
     appellees corrected procedural defects -- no testimony indicated
     appellant's hearing was tainted. -- Although appellees initially
     erred when they terminated appellant without notice, they
     later corrected the procedural defects under the Arkansas
     Public School Employee Fair Hearing Act, complying the second
     time by sending appellant notice that contained the reasons
     for the recommended termination and notifying him of his right
     to a hearing; when appellant missed the scheduled hearing,
     appellees rescheduled it, and appellant was given and availed
     himself of the opportunity to be heard and to cross-examine
     the witnesses who testified against him; the board was
     instructed to consider only the evidence presented at the
     second hearing and was advised that their previous vote was
     rescinded; there was no testimony to indicate that the board
     members were not fair-minded and did not do as instructed or
     that appellant's hearing was tainted.

8.   Schools & school districts -- Arkansas Public School Employee Fair Hearing
     Act -- trial court correctly found that appellees did not violate
     appellant's procedural due process rights. -- The supreme court,
     holding that the trial court's ruling based on the standard of
     review for school board decisions was not clearly erroneous as
     applied to noncertified personnel and that substantial
     compliance is the proper standard to apply pursuant to the
     Arkansas Public School Employee Fair Hearing Act, noted that
     the trial court correctly found that appellees did not violate
     appellant's procedural due process rights of notice and
     opportunity to be heard. 


     Appeal from St. Francis Circuit Court, First District; Harvey
L. Yates, Judge; affirmed.
     Roachell Law Firm, by: Travis N. Creed, Jr., for appellant.
     W. Paul Blume, for appellees.

     Donald L. Corbin, Justice.
     Appellant David Small, who was terminated from his position as
a school mechanic, raises an issue of first impression that
requires us to interpret the Arkansas Public School Employee Fair
Hearing Act ("the Act"), codified at Ark. Code Ann.  6-17-1701--
1705 (Repl. 1993).  Appellees are members of the board of directors
of the Forrest City School District ("the District"),
Superintendent Emerson Hall, and the Forrest City Public Schools. 
The St. Francis County Circuit Court upheld the school board's
decision.  Our jurisdiction is pursuant to Ark. Sup. Ct. R. 1-
2(a)(17), as this case presents an issue of significant public
interest.  We hold that Appellees substantially complied with the
requirements of the Act, and we affirm.
     The parties do not dispute the underlying facts.  Appellant
was employed as a mechanic for Appellees for over ten years and
also drove a school bus when needed to substitute for absent
drivers on regular routes.  Appellant worked on a year-to-year
contractual basis.  At the time of his termination in May 1993, his
contract began July 1, 1992, and would have ended June 30, 1993. 
In early 1993, Appellant filed a grievance with the District.  For
approximately three years, Appellant had been aware that other
employees were given separate contracts and, in some cases,
additional pay for bus driving.  Appellant's 1992-93 contract
stated that his job title was "mechanic," but did not include a job
description.  However, Appellant's 1991 job description
specifically stated that he would "substitute drive on regular
routes."  Appellant received one and one-half overtime compensation
when he worked in excess of his regular schedule.  Appellant filed
the grievance with his immediate supervisor Joe Carden, who was the
director of transportation for the District.  Carden did not
respond in writing to Appellant's grievance but told him he would
pass it along to the next level of administration which was Deputy
Superintendent Rodney Echols.  Appellant was told he would not
receive additional compensation for substitute bus driving. 
     On January 23, 1993, Appellant refused to drive the bus when
Carden directed him.  Appellant and Carden discussed that Appellant
had not signed a contract with a detailed job description for the
1992-93 school year or for the previous year.  Appellant and Carden
agreed that Appellant's job description had not changed for the
1992-93 school year, but Appellant refused to drive.  Carden told
Appellant that he would recommend termination or suspension to the
school board.      
     On January 27, 1993, Superintendent Hall mailed a letter to
Appellant that stated:
     This is to inform you that based on a recommendation from
     your supervisor, Mr. Joe Carden, and Deputy
     Superintendent Rodney Echols you are hereby suspended
     from your job effective immediately.  You will be
     recommended for termination at a later date.  

     The District's school board met on February 8, 1993, and voted
to terminate Appellant without giving him notice of the meeting. 
On February 25, 1993, Appellant filed a complaint in the St.
Francis County Chancery Court against Appellees.  Appellant also
filed a motion for a preliminary injunction of his termination.  
On March 10, 1993, Hall sent the following letter to Appellant: 
     By this letter, I am advising you that the previous
     suspension and termination of your employment with the
     Forrest City School District is rescinded.  Enclosed is
     a check in payment of your salary for the affected
     period. 

     On March 12, 1993, Hall again notified Appellant by letter as
follows:  
     You are hereby notified that I intend to recommend that
     your contract with the Forrest City School District be
     terminated.  The reasons for my recommendation are as
     follows:
          Even though the possibility of driving a
          school bus is included in your job
          description, and you are, and have been, aware
          of that fact, you refused to obey the
          directive of your supervisor, Mr. Joe Carden,
          to drive the school bus when needed on
          January 23, 1993.  Such refusal to carry out
          your reasonable and necessary duties
          constituted gross insubordination. 
     You have a 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 my 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 provided to you at no cost.

     Prior to the hearing, Appellant was suspended with pay.  He
did not return to work.  Board meetings were normally held on the
second Monday of each month.  By letter dated March 31, 1993,
Appellant requested a hearing, and the hearing was scheduled for
the next regularly scheduled board meeting.  The second Monday of
April would have been on April 12, 1993.  Appellant availed himself
on April 12, 1993.  However, the meeting took place on April 19,
1993.  The District did not give written notice to Appellant of the
specific date, although correspondence between Hall and Appellant's
representative, Jim Banks of the Arkansas Education Association
("AEA"), indicated that the April 19, 1993 date was discussed
between Hall and Banks.  Appellees agreed to reschedule the meeting
for May 10, 1993, and notified Appellant by letter of the hearing. 
Appellant attended the May 10, 1993 board meeting with Banks.  
Before the proceeding, the attorney for Appellees cautioned the
board members to consider only the evidence presented at that
proceeding and further advised them that their prior vote to
terminate Appellant had been rescinded.  
     Both Appellant and Carden testified that Appellant's job
duties were the same as they were for the 1991 contract.  Appellant
admitted that he was paid an overtime rate of time and one-half if
he worked over forty hours per week.  Appellant did not deny that
he refused to drive the bus when his supervisor directed him to do
so on January 23, 1993, and that was one of the duties for which he
was hired.  Appellees introduced the District's policy which stated
that insubordination is a ground for both immediate suspension and
termination.  Appellees also introduced Appellant's 1991 job
description, which contained the duty of driving the school bus on
regular routes when necessary for Appellant's position as
"mechanic."   After the evidence was presented, the board members
again voted to terminate Appellant.
     On June 16, 1993, Appellant filed an amended complaint in the
St. Francis County Chancery Court in which he alleged that the
May 10, 1993 proceeding was "tainted."  Appellant further requested
reinstatement and front pay, back pay, and punitive damages. 
Appellant's second amended complaint, which he successfully
transferred from chancery to circuit court, alleged that he was
denied procedural due process when he was prevented from fully
using the district's grievance process.  Appellant did not,
however, produce any testimony which indicated that the termination
hearing was tainted.  One board member, Ronald Williams, testified
that he voted against Appellant's termination, but that he did not
have his mind made up before he went into the hearing.  
     The circuit court held that the District had substantially
complied with the Public School Employee Fair Hearing Act and
entered an order in favor of Appellees, dismissing the complaint
with prejudice on February 26, 1997.  Appellant filed notice of
this appeal on March 19, 1997.
     This court set forth the standard of review for school board
decisions in Murray v. Altheimer-Sherrill Pub. Sch., 294 Ark. 403,
743 S.W.2d 789 (1988): 
          The determination not to renew a teacher's contract
     is a matter within the discretion of the school board,
     and the circuit court cannot substitute its opinion for
     that of the board in the absence of an abuse of
     discretion by the board. Leola School District v.
     McMahan, 289 Ark. 496, 712 S.W.2d 903 (1986); Chapman v.
     Hamburg Public Schools, 274 Ark. 391, 625 S.W.2d 477
     (1981). Moreover, it is not this court's function to
     substitute our judgment for the circuit court's or the
     school board's. Leola, supra; Moffitt v. Batesville
     School District, 278 Ark. 77, 643 S.W.2d 557 (1982). We
     will reverse only if we find on review of the trial
     court's decision that the court's findings were clearly
     erroneous.  Ark. R. Civ. P. 52; Green Forest, supra.
Id. at 406, 743 S.W.2d  at 790.
     In Hamilton v. Pulaski County Special Sch. Dist., 321 Ark.
261, 900 S.W.2d 205 (1995), this court recognized that it is our
responsibility to determine whether there has been procedural
compliance under the Teacher Fair Dismissal Act.  When required to
review a statute, this court first looks to the plain language of
the statute.  Public Empl. Claims Div. v. Chitwood, 324 Ark. 30,
918 S.W.2d 163 (1996).  When the statutory language is clear and
unambiguous, this court follows the plain meaning of the words
rather than interpreting it. Id.
     For his sole argument on appeal, Appellant argues that the
trial court erred when it held that his termination by Appellees
was proper on the basis that it substantially complied with the
provisions of section 6-17-1703.  Appellant contends that the
Public School Employee Fair Hearing Act requires strict compliance
in order to protect his due process rights of notice and
opportunity to be heard.
     Section 6-17-1703 provides in relevant part: 
          (a) The superintendent of a school district may
     recommend termination of an employee during the term of
     any contract, or the nonrenewal of a full-time
     nonprobationary employee's contract, provided that he
     gives notice in writing, personally delivered, or by
     letter posted by registered or certified mail to the
     employee's residence address as reflected in the
     employee's personnel file.

          . . . .
          (c) Such written notice shall include a statement of
     the reasons for the proposed termination or nonrenewal.

          (d) The notice shall further state that an employee
     being recommended for termination, or a full-time
     nonprobationary employee being recommended for
     nonrenewal, is entitled to a hearing before the school
     board upon request, provided such request is made in
     writing to the superintendent within thirty (30) calendar
     days from receipt of said notice.

     It is clear that the General Assembly promulgated the Act to
protect noncertified school employees' rights to notice and
opportunity to be heard by providing a reasonable hearing procedure
when termination or nonrenewal is imminent.  This is our first
opportunity to determine the proper standard for compliance under
the Act.   We have, however, interpreted the Arkansas Teacher Fair
Dismissal Act to require strict compliance due to the language
contained in Ark. Code Ann.  6-17-1503 (Repl. 1993), which reads
in part:
     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 district's
     applicable personnel policies.

See, e.g., Hannon v. Armorel Sch. Dist. #9, 329 Ark. 267, 946 S.W.2d 950 (1997).  Appellant urges us to adopt the identical
procedural requirement for noncertified school employees.  For the
reasons outlined below, we decline to adopt such requirement.   
     The trial court based its decision against Appellant on
Murray, 294 Ark. 403, 743 S.W.2d 789, and concluded that
substantial compliance is required and was followed under the Act. 
Murray was decided prior to section 6-17-1503.  Although Murray
concerned the Arkansas Teacher Fair Dismissal Act and a nonrenewal
of a coach's contract, it contained almost identical procedural
facts.  Without prior notice to Murray, the school board voted on
the superintendent's recommendation not to renew Murray's teaching
contract for the following year.  The next day, the school district
sent notice to Murray which informed him of the superintendent's
recommendation.  The notice to Murray also provided: 
               I am also informing you that you may
               file a written request with the
               school board of the district for a
               hearing within 30 days after you
               receive this notice.
               The hearing may be private unless
               you or the board  shall request that
               the hearing be public. At the
               hearing, you may be represented by a
               person of your choice.

Id. at 405-406, 743 S.W.2d  at 790.  Later, the school district
realized that its vote of nonrenewal took place before Murray was
given notice or had an opportunity to be heard in contravention to
the Teacher Fair Dismissal Act.  The school board reconvened and
voted to rescind its previous vote of nonrenewal.  Murray requested
a hearing which was held.  At the conclusion of the meeting, the
board again voted not to renew Murray's contract.  This court
rejected Murray's argument that the procedure violated his due
process rights under Green Forest Pub. Sch. v. Herrington, 287 Ark.
43, 696 S.W.2d 714 (1985), in which this court held that written
notice of nonrenewal after the nonrenewal decision was made did not
meet the requirements of substantial compliance under the Teacher
Fair Dismissal Act of 1979, Ark. Stat. Ann.  80-1264--1264.10
(Repl. 1980).  Because the Altheimer-Sherrill school board formally
rescinded all of its actions taken before Murray's final hearing,
this court held that substantial compliance was met.  Additionally,
counsel for the school board emphasized on the record that the
board had rescinded its earlier decision, and further cautioned the
board:
     "[You] should not vote based on any preconceived notions,
     indeed, if you have any, but should make your decision
     solely on what has been brought before you and will be
     brought before you during this hearing."
Murray, 294 Ark. at 408, 743 S.W.2d  at 791.  This court concluded:
          This "cautionary instruction" coupled with the
     board's formal rescission of its original vote cured any
     error resulting from the April 28 hearing.  We presume
     that the board members are fair-minded and resolve
     matters presented to them on an impartial basis.
Id.  Therefore, this court held that the school district had
substantially complied with the procedural requirements inherent in
the Teacher Fair Dismissal Act.    
     The General Assembly amended the Arkansas Public School
Employee Fair Hearing Act in 1997 to include subsection (e),
providing that noncertified school employees are no longer
employees at will.  We observe, however, that the General Assembly
omitted the requirement of strict procedural compliance for
noncertified employees covered under the Act.  We therefore reject
Appellant's argument that the Act requires strict compliance.  The
express requirement found in the Teacher Fair Dismissal Act has
compelled our recent holdings under the act covering certified
teachers.  Absent contrary legislative directive, we hold that
substantial compliance is the applicable standard under the
Arkansas Public School Employee Fair Hearing Act.  
     In conclusion, although Appellees concede that they initially
erred when they terminated Appellant without notice on February 8,
1993, they later corrected the procedural defects under the Act. 
They complied the second time by sending notice which contained the
reasons for the recommended termination to Appellant and notifying
him of his right to a hearing.  When Appellant missed the April 19,
1993 hearing, Appellees rescheduled it at the next regularly
scheduled meeting time on May 10, 1993, at which time Appellant was
given and availed himself of the opportunity to be heard and to
cross-examine the witnesses who testified against him.  The board
was instructed to consider only the evidence presented at the May
10 hearing, and was advised that their previous vote was rescinded. 
We presume that the board members are fair-minded and did as
instructed.  There was no testimony to indicate otherwise or that
Appellant's hearing was tainted.    
      Accordingly, we hold that the trial court's ruling which
relied on Murray, 294 Ark. 403, 743 S.W.2d 789, was not clearly
erroneous as applied to noncertified personnel and further hold
that substantial compliance is the proper standard to apply
pursuant to the Arkansas Public School Employee Fair Hearing Act. 
The trial court correctly found that Appellees did not violate
Appellant's procedural due process rights of notice and opportunity
to be heard. 
     Affirmed.