Appeal by petitioner from judgment dated 13 October 1999 by
Judge Jesse B. Caldwell, III in Burke County Superior Court. Heard
in the Court of Appeals 20 February 2001.
Elliot Pishko Gelbin & Morgan, P.A., by J. Griffin Morgan, for
petitioner-appellant.
Patton, Starnes, Thompson, Aycock, Teele & Ballew, P.A., by
Larry A. Ballew, for respondent-appellee.
Tharrington Smith, L.L.P., by Michael Crowell; and General
Counsel Allison B. Schafer for North Carolina School Boards
Association, amicus curiae.
Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., by
John W. Gresham; and Law Office of Thomas M. Stern, by Thomas
M. Stern, for North Carolina Association of Educators, amicus
curiae.
GREENE, Judge.
Linda Farris (Petitioner) appeals the Burke County Superior
Court's judgment dated 13 October 1999 affirming the Burke County
Board of Education's (Respondent) decision to terminate
Petitioner's employment with the school system.
Petitioner was employed by the Burke County Public Schools
(BCPS) for approximately 28 years beginning in 1970 and “attained
tenure and career status as a teacher.” In 1990, Petitioner began
teaching at Morganton Junior High which later merged into Liberty
Middle School. Petitioner taught educable mentally handicapped
students in the sixth, seventh, and eighth grades, who had IQ
ranges from 55-77. Petitioner taught her students in a manner to
help make the academic skills they were learning functional. For
example: Petitioner taught her students math, reading, and
vocabulary skills by teaching them how to read recipes and cook.
On 12 June 1998, Dr. Tony M. Stewart (Stewart), superintendent
of BCPS, wrote Petitioner a letter informing her that Charles R.
Sherrill (Sherrill), Principal at Liberty Middle School,
recommended that Petitioner not be rehired for the upcoming school
year and that Stewart agreed with Sherrill's recommendation.
Stewart also indicated in his 12 June letter that he would like to
meet with Petitioner in his office on 16 June 1998 “to review . . .in detail the facts which substantiate” his decision
to recommend
Petitioner's termination.
Petitioner did not respond to Stewart's 12 June letter.
Stewart contacted Petitioner again by letter dated 29 June 1998
informing her that because she had not attended the 16 June
meeting, she had waived her opportunity to respond to Stewart
concerning the charges. Stewart also informed Petitioner in his 29
June letter that Petitioner had 14 days after receipt of the 29
June letter to file “a written request for either (i) a hearing on
the grounds for [Stewart's] proposed recommendation by a case
manager, or (ii) a hearing within five (5) days before [Respondent]
on [Stewart's] recommendation.” In the 29 June letter, Stewart
stated:
GROUNDS FOR DISMISSAL
The grounds for your dismissal are
inadequate performance, insubordination, and
neglect of duty, pursuant to N.C.G.S. § 115C-
325(e)(1)(a), (c), and (d).
BASIS FOR THE CHARGES
Attached to this letter . . . is a
summary of the factual basis for my
recommendation that you not be rehired for the
coming school year. You have repeatedly
ignored direct orders from your principals
both oral and written. You [have] created,
and refused to correct, health and fire
hazards, which endangered your students. You
[have] refused to follow directives regarding
curriculum, and you misrepresented the status
of your plan book.
The administration has demonstrated a
thoughtful, patient, persistent but unavailing
effort to get you to recognize that you were
not properly managing your classroom and to
correct the situation. Any and all of the
referenced acts constitute inadequate
performance, insubordination[,] and neglect ofduty.
Stewart included a 9 page attachment chronologically listing
documents and correspondences that substantiated his decision to
terminate Petitioner. On 10 July 1998, Petitioner responded to
Stewart's letter and requested a hearing before a case manager.
In a letter dated 12 August 1998, Petitioner requested Stewart
provide her with a copy of the documents described in Stewart's 9
page attachment to his 29 June letter; on 20 August 1998, Stewart
forwarded copies of the requested documents to Petitioner. On 31
August 1998, Petitioner requested Stewart to further provide her
with a list of witnesses, a brief summary of the witnesses'
testimony, and a copy of any documents Stewart intended to present
at the hearing before the case manager. Stewart provided
Petitioner with a list of his witnesses on 31 August 1998,
indicating he would call: Stewart; former principal Betty Terrell
(Terrell); former principal Sherrill; former assistant principal
Melinda Bollinger (Bollinger); Director of Exceptional Children
Joel Hastings (Hastings); Petitioner's teacher assistant Beth
Wright (Wright); and former principal Robert Patton (Patton).
Stewart informed Petitioner that each of the witnesses would
testify “about the events that culminated in [Stewart's] decision
to recommend to [Respondent] that [Petitioner's] contract not be
renewed.” Stewart also indicated that with regard to the documents
he planned to introduce, he could “present any of the documents
that [he] ha[d] previously provided to [Petitioner]” as well as
“reports from the [F]ire [M]arshall and possibly the [H]ealth
[D]epartment, neither of which [were] currently in [his]possession.”
The case manager's hearing was held on 3 September 1998 and
was continued until 8 October 1998. After the hearing, the case
manager's report (the report) included a ruling sustaining
Petitioner's objections, made during the hearing, to: pictures of
Petitioner's classroom that were offered as evidence at the hearing
but not provided to Petitioner prior to the hearing; three letters
that were not contained in the 29 July 1998 notice to Petitioner;
(See footnote 1)
testimony of Wright “regarding field trips, telephone calls[,] and
descriptions on non-teaching activities”; documents regarding
Exceptional Children records; and testimony of Hastings regarding
Exceptional Children records and Petitioner's relationship with a
particular student. In her findings of fact, the case manager
found, in pertinent part:
[O]ver the course of 28 years, [Petitioner]
acquired a large and wide variety of teaching
materials that accumulated in her classroom
and office to accommodate her students and
their special needs. That [Petitioner's]
classroom was cluttered with these items.
7. That the clutter in [Petitioner's]
classroom was of concern to her various
principals over the last four years. That at
various times and on various occasions, these
principals, [Terrell, Bollinger, and Sherrill]
encouraged and requested [Petitioner] to clean
her classroom. On several occasions,
[Petitioner] was directed to clean her
classroom. . . .
6. [sic] . . . That [Terrell] sent
[Petitioner] a letter in March[] 1996 simplydocumenting that a general cleaning of her
room had not been accomplished. That
[Terrell] did not warn [Petitioner] that her
behavior was insubordinate.
7. [sic] . . . That [Bollinger] wrote
[Petitioner] that failure to clean the
classroom would constitute insubordination.
That [Petitioner] complied with that directive
on the same day she received [Bollinger's]
letter and notified [Bollinger] in writing of
her compliance with these clear and specific
instructions. . . .
8. . . . That on September 8, 199[7],
[Sherrill] gave [Petitioner] specific
directions regarding the cleaning of her
classroom. Two months later on November 10,
1997, [Sherrill] noted compliance of his
instructions by [Petitioner].
9. On February 10, 1998, in response to
a call from the health department[,] all the
classrooms at North Liberty School were
inspected. Items of outdated food were found
in [Petitioner's] classroom or office.
10. [Petitioner] was not giv[en] a
warning, a plan for improvement[,] or any
written notification that [Sherrill] viewed
her as being insubordinate or having neglected
her duty as a result of the food items that
were found in her classroom or office.
11. That despite the ongoing differences
regarding the condition of her classroom
between [Petitioner] and her principals, . . .
[Petitioner] was evaluated by both [Terrell
and Bollinger] as being above standard in
every teaching function. . . . [Sherrill]
evaluated [Petitioner] as being standard in
two of the categories he observed and below
standard in the other three categories he
observed. [Petitioner] was again evaluated on
May 4, 1998 by evaluators who did have some
training and experience in special education
and was found to be performing at standard in
each category they observed which were the
same categories evaluated by [Sherrill]. On
June 2, 1998, [Sherrill] completed a Teacher
Performance Appraisal Instrument for
[Petitioner]. He rated her a[s] being
standard in the three categories in which he
had previously found her to be below standard. Then, although never having given her any
documentation or warnings, he rated her as
being below standard or unsatisfactory in
three categories in which he had never
previously evaluated her.
12. That on two occasions, [Sherrill]
claimed that [Petitioner] was insubordinate
because she failed to have lesson plans in a
lesson plan book as she had been instructed.
[Sherrill] offered into evidence blank pages
of a lesson plan book. However, additional
pages obtained by [Sherrill] consist of
lengthy instructions written for substitute
teachers which would not fit within a lesson
plan book. [Sherrill] did not request the
lesson plan book from [Petitioner].
[Petitioner] testified that she maintained a
lesson plan [book]. On May 4, 1998,
[Petitioner] was observed by assistant
principal Susan Jones and by Jeannette N.
Davis. The Formative Observation Data
Analysis of this observation does not note the
failure to maintain a lesson plan book. That
a former principal and a teacher of the in-
school suspension program (ISS) at Liberty
Middle School, testified that anytime one of
[Petitioner's] students was sent to [ISS] they
always came with a lesson plan.
13. Two long term special education
teachers testified that they reviewed the
individualized educational plans of
[Petitioner's] students and [Petitioner's]
lesson plan book. Ms. Horn testified that
formal lesson plans were not always necessary
in a special education class like the one
[Petitioner] taught. Both teachers testified
that the individualized education plans for
[Petitioner's] students were well thought out
and appropriate[]. Further, both teachers
confirmed that [Petitioner's] method of
teaching, including the utilization of recipes
and field trips, were effective methods of
teaching middle school educationally mentally
handicapped children and focused on
appropriate lessons which would help these
children in the future.
. . . .
16. Except for his approximately one
hour observation of [Petitioner] on December
8, 1997, [Sherrill] spent no other timeobserving [Petitioner] or monitoring her
teaching ability. [Sherrill] failed to make
suggestions to [Petitioner] for professional
improvement following his December 8, 1997
observation and evaluation of [Petitioner].
Following his December 8, 1997 observation of
[Petitioner], [Sherrill] did not provide
[Petitioner] any assistance in becoming a more
effective teacher. He did not devise a
professional growth plan. He did not request
the assistance of other special education
teachers or of [Hastings] . . . . [Sherrill]
failed to document[] ways in which he had
helped [Petitioner] become a more effective
professional at a time when he was
recommending her dismissal.
17. There was a[n] evidentiary objection
as to the maintenance of IEP folders by
[Petitioner]. The only evidence introduced to
show that [Petitioner] had not properly
maintained the IEP folders was the testimony
of [Hastings]. This evidence is outside the
factual basis stated by [Stewart] as the basis
for his decision to terminate [Petitioner].
18. Four parents of former students of
[Petitioner] testified at the hearing. Each
parent testified as to having observed
[Petitioner] in the classroom or on field
trips. Each parent testified that his/her
child made progress in [Petitioner's]
classroom. Each parent testified that if
given the opportunity they would have
[Petitioner] teach their child again.
19. [Petitioner] was not insubordinate
and did not willfully disregard directions of
her employer or refuse to obey a reasonable
order.
20. [Petitioner's] teaching performance
was not inadequate.
21. [Petitioner] did not neglect her
duty.
Consistent with these findings of fact, the case manager
recommended in the report that Stewart's grounds for Petitioner's
dismissal were not substantiated.
On 9 November 1998, Stewart wrote Petitioner and informed herhe intended to submit a written recommendation to Resp
ondent that
Petitioner be dismissed. In response, Petitioner requested a
hearing before Respondent. In a letter dated 18 November 1998,
Stewart recommended to Respondent the termination of Petitioner,
stating:
The grounds for my recommendation are
inadequate performance, insubordination, and
neglect of duty, pursuant to N.C.G.S. § 115C-
325(e)(1)(a), (c)[,] and (d). [Petitioner]
repeatedly ignored direct orders, both oral
and written, from principals. [Petitioner]
created, and refused to correct, health and
fire hazards, including giving special
education children seriously outdated food,
all of which endangered her students.
[Petitioner] refused to follow directives
regarding curriculum, and she misrepresented
the status of her [lesson] plan book.
The administration has demonstrated a
thoughtful, patient, persistent but unavailing
effort to get [Petitioner] to recognize that
she was not properly managing her classroom.
On 18 November 1998, Stewart forwarded to Respondent the entire
record of the hearing held before the case manager, including a
transcript of the hearing and all exhibits presented by either
side.
(See footnote 2)
No new evidence outside of the record of the hearing held
before the case manager was presented before Respondent.
Petitioner and Stewart were permitted to make oral arguments before
Respondent in a closed session.
On 12 January 1998, Respondent “unanimously determined that
the case manager's findings of fact were not supported by
substantial evidence when the record was reviewed as a whole andtherefore made . . . alternative findings of fact.” The
alternative findings of fact provided, in pertinent part:
44. At the case manager['s] hearing,
[Wright], the teacher assistant in
[Petitioner's] classroom for the previous two
years[,] stated, and we find as fact, that
[Petitioner] would spend as much as three to
four hours per day on the telephone, leaving
the kids to the assistant to teach. The
telephone conversations were unrelated to the
classroom and concerned with [Petitioner's]
joint-venture in a flea market, her massage
business, or the psychic hot-line.
. . . .
48. [Petitioner] did not spend a complete day
doing instruction to the children, during the
two years that [Wright] was her assistant.
The most time that [Petitioner] spent in one
day actually teaching was two hours.
[Petitioner] spent less than 10% of her time
actually teaching the children in her care.
. . . .
54. [Petitioner] took the class on a field
trip to the Biltmore House in Asheville. The
children's parents were told that the children
would be back at 5:00 p.m. [Petitioner] did
not have the children back until 8:00 p.m. and
did not call anyone to say they would return
late. The reason they were late returning is
because [Petitioner] wanted to go shopping
after the field trip.
55. Pictures taken of [Petitioner's]
classroom illustrated the testimony shown in
the transcripts. The classroom was cluttered,
old food was present throughout the room and
the storage areas, roach droppings and a rat's
nest were clearly visible.
56. In March of 1998, the Director for
Exceptional Children, [Hastings], in a review
of the Exceptional Children records in
[Petitioner's] class were incomplete.
[Hastings] directed [Petitioner] to make the
necessary corrections. [Hastings'] testimony
was that such incomplete records could have
resulted in a loss of funding had they not
be[en] corrected before an audit.
After making alternative findings of fact, Respondent determined
Stewart's grounds for dismissal were substantiated and it thereby
terminated Petitioner's employment with BCPS. Petitioner
subsequently appealed to the Burke County Superior Court. The
Burke County Superior Court affirmed Respondent's decision to
terminate Petitioner concluding Respondent's decision was
“supported by substantial evidence from the whole record.”
______________________________
The issues are whether: (I) evidence is admissible in a
section 115C-325(j) or (j2) hearing when that evidence is outside
the scope of the section 115C-325(h)(2) notice provided by the
superintendent to the career teacher; (II) an exhibit is
admissible in a section 115C-325(j) or (j2) hearing when the
superintendent has not provided the career teacher a copy of the
exhibit, pursuant to section 115C-325(j)(5); and (III) the findings
of the case manager are supported by substantial evidence.
I
[1]Petitioner argues section 115C-325 prohibits Respondent
from basing Petitioner's dismissal on grounds not stated in the
section 115C-325(h)(2) notice provided to Petitioner. We agree.
Before a superintendent of public instruction for a county
school system (the superintendent) may recommend to the board of
education (the board) the dismissal of a career teacher, as defined
within the meaning of N.C. Gen. Stat. § 115C-325(c)(1), the
superintendent is required to give the career teacher “written
notice of the charges against [her], an explanation of the basis
for the charges, and an opportunity [for the career teacher] torespond.” N.C.G.S. § 115C-325(h)(2) (1999). It follows that any
evidence offered outside the scope of this notice is not admissible
in a section 115C-325(j) or (j2) hearing and, thus, cannot support
dismissal of a career teacher.
See Baxter v. Poe, 42 N.C. App.
404, 408-09, 257 S.E.2d 71, 74 (due process requirements are
satisfied if dismissal procedures are followed and the teacher is
given adequate notice),
disc. review denied, 298 N.C. 293, 259
S.E.2d 298 (1979). The superintendent's notice shall also include
a “statement to the effect that if the career [teacher] within 14
days after the date of receipt of the notice requests a review,
[she] shall be entitled to have the grounds for the proposed
recommendations of the superintendent reviewed by a case manager.”
N.C.G.S. § 115C-325(h)(2).
In this case, Stewart gave Petitioner, a career teacher,
notice of the grounds for her dismissal and an explanation of the
basis for her dismissal on 29 June 1998. The grounds asserted
were: insubordination, inadequate performance, and neglect of
duty. The factual basis for these grounds was that Petitioner:
repeatedly ignored both oral and written direct orders from her
principals; created, yet refused to correct, health and fire
hazards; refused to follow directives regarding curriculum; and
misrepresented the status of her lesson plan book. The evidence
excluded by the case manager relating to Petitioner's field trips,
telephone calls to a psychic hot-line, non-teaching activities,
maintenance of Exceptional Children records, and relationship with
a particular student, was simply outside the scope of the basis
asserted by Stewart. Accordingly, the case manager correctlyexcluded this evidence and Respondent, being bound by that
determination, improperly relied on this evidence in making its
decision.
See N.C.G.S. § 115C-325(j)(7) (1999) (case manager to
decide questions of procedure and evidence);
see also N.C.G.S. §
115C-325(j)(4) (1999) (rules of evidence do not apply).
II
[2]If the career teacher elects to have a hearing before the
case manager, the superintendent, prior to the hearing before the
case manager, shall provide to the career teacher: “a list of
witnesses the superintendent intends to present[;] a brief
statement of the nature of the testimony of each witness[;] and a
copy of any documentary evidence the superintendent intends to
present.” N.C.G.S. § 115C-325(j)(5) (1999). Additional witnesses
or documentary evidence not previously provided by the
superintendent “may not be presented except upon a finding by the
case manager that the new evidence is critical to the matter at
issue and the party making the request could not, with reasonable
diligence, have discovered and produced the evidence according to
the schedule provided” in section 115C-325(j).
Id.
In this case, Stewart did not timely provide Petitioner with
copies of pictures of her classroom or copies of documents
concerning Exceptional Children records
(See footnote 3)
and the case manager madeno finding that the evidence was critical or that Stewart could not
have discovered this evidence prior to the hearing. Accordingly,
the case manager properly excluded this evidence and Respondent,
being bound by that determination, improperly relied on this
evidence.
See N.C.G.S. § 115C-325(j)(7) (case manager to decide
questions of procedure and evidence);
see also N.C.G.S. § 115C-
325(j)(4) (rules of evidence do not apply).
III
[3]“The board shall accept the case manager's findings of
fact unless a majority of the board determines that the findings of
fact are not supported by substantial evidence when reviewing the
record as a whole.” N.C.G.S. § 115C-325(j2)(7) (1999). If after
reviewing the “whole record,” the board determines the case
manager's findings of fact are unsupported by substantial evidence,
“the board shall make alternative findings of fact.”
Id. In
conducting a “whole record” review, the board must review all the
evidence that was admitted by the case manager.
See Taborn v.
Hammonds, 324 N.C. 546, 551, 380 S.E.2d 513, 516 (1989). A “whole
record” review, however, does not allow the board to replace the
case manager's judgment in light of two reasonably conflicting
views, but requires the board to “determine the substantiality of
the evidence by taking all the evidence, both supporting and
conflicting, into account.”
See Powell v. N.C. Dept. of Transp.,
347 N.C. 614, 623, 499 S.E.2d 180, 185 (1998) (applied in the
context of conducting a “whole record” review of an agency
decision). In this case, viewing the “whole record,” there was
substantial evidence to support the case manager's findings of
fact.
See Thompson v. Wake County Bd. of Educ., 292 N.C. 406, 414,
233 S.E.2d 538, 544 (1977) (substantial evidence is evidence “a
reasonable mind might accept as adequate to support a conclusion”)
(citations omitted). Respondent was bound by the findings of the
case manager and, therefore, erred in making alternative findings
of fact.
Accordingly, the decision of the Burke County Superior Court
is reversed and this case is remanded to that court for further
remand to Respondent for it to either reject Stewart's
recommendation or “accept or modify the recommendation and dismiss,
demote, reinstate, or suspend” Petitioner. N.C.G.S. § 115C-
325(j1)(5) (1999). Respondent's decision must be based on the
findings made by the case manager.
Reversed and remanded.
Judges MCCULLOUGH and HUDSON concur.
Footnote: 1
