Ronald Luellen v. Special Administrative Board of the Transitional School District of the City of St. Louis , 2015 Mo. App. LEXIS 179 ( 2015 )

In the Missouri Court of Appeals
Eastern District
DIVISION FOUR
RONALD LUELLEN, ) No. ED101316
)
Appellant, )
) Appeal from the Circuit Court
vs. ) of the City of St. Louis
) 1222-CC09846
SPECIAL ADMINISTRATIVE BOARD )
OF THE TRANSITIONAL SCHOOL ) Honorable David L. Dowd
DISTRICT OF THE CITY OF ST. LOUIS, )
)
Respondent. ) Filed: February 24, 2015
Ronald Luellen (“Appellant”) appeals the judgment of the trial court affirming the
decision of the Special Administrative Board (“the SAB”) to terminate his employment with the
Transitional School District of the City of St. Louis (“the District”). We reverse and remand.
I. BACKGROUND
Appellant was employed as a physical education teacher by the District for approximately
nine years. On February 16, 2012, Appellant was involved in an incident wherein he allegedly
threw a seven-year-old student (“P.H.”) to the ground when she refused to sit down while
awaiting the arrival of her bus. Another student’s parent witnessed the event. As a result of the
incident, the District’s Superintendent decided to terminate Appellant’s employment. The
District issued a statement of charges on April 2, 2012. The statement of charges alleged that
Appellant violated several District policies.
An administrative hearing was conducted on May 2, 2012. Before P.H. took the stand as
a witness, the Superintendent submitted a motion to exclude Appellant from the room on the
grounds that P.H. would be intimidated by Appellant’s presence. The Superintendent did not
present any testimony or other evidence in support of his contention that P.H. would be
intimidated, rather, he based the motion on P.H.’s young age and the severity of the alleged
underlying facts. The hearing officer granted the Superintendent’s motion over Appellant’s
objection.
During P.H.’s testimony, Appellant was not allowed in the hearing room pursuant to the
Superintendent’s motion. However, Appellant was permitted to listen to P.H.’s testimony
telephonically and was allowed to confer with his attorney during a break before counsel’s cross-
examination of P.H.
On August 24, 2012, after considering the testimony of the various witnesses and
evidence from the hearing, the SAB issued its findings of fact and conclusions of law, finding
that Appellant violated the District’s policies in question and terminating his employment.
Appellant filed a petition for review, and the trial court affirmed the SAB’s decision. This
appeal followed.
II. DISCUSSION
Appellant raises two points on appeal. In his first point, Appellant asserts the SAB erred
in terminating his employment because its decision was not supported by competent evidence
and was arbitrary and capricious. In his second point, Appellant contends the SAB erred in
terminating his employment because he did not receive a fair hearing, in that he was not able to
confront an adverse witness due to his exclusion from the hearing room. Because Appellant’s
second point is determinative, we need not address his first point on appeal.
2
On appeal, we review the SAB’s decision itself, not the judgment of the trial court.
Loeffelman v. Board of Educ. of Crystal City School Dist., 134 S.W.3d 637, 643 (Mo. App. E.D.
2004).
Teachers employed by the District for more than five years are tenured and permanent
pursuant to sections 168.221.1 and .2 RSMo Supp. 2011.1 A termination hearing for a tenured
and permanent teacher must be conducted as a contested case under the guidelines governing
administrative actions in chapter 536. Section 168.221.3. We will reverse if the action of the
agency is made upon unlawful procedure or without a fair hearing. Section 536.140.2(5) RSMo
2000. Specifically, section 168.221.3, in relevant part, provides that the teacher “shall have the
privilege of being present at the hearing, together with counsel, offering evidence and making
defense thereto.” (emphasis added). Use of the word “shall” generally indicates the legislature’s
intent to create a mandatory directive. Williams v. State, Dept. of Social Services, Children’s
Div., 440 S.W.3d 425, 435 (Mo. banc 2014).
Because Appellant was employed by the District for more than five years, he could only
be terminated according to the procedures outlined in section 168.221.3. The hearing in this case
did not comply with the terms of that statute, because Appellant was excluded from the hearing.
Because he was not in the hearing room, Appellant did not have the opportunity to observe the
adverse witness’s demeanor during her testimony. Furthermore, he did not have the ability to
confer with his attorney during direct- and cross-examination, but rather was limited to one
conversation during a break before cross-examination. Section 168.221.3 uses mandatory
1
Section 168.221 has been subsequently amended, but those amendments were not effective the time of the instant
hearing. All further references to section 168.221 are to RSMo Supp. 2011.
3
language – the teacher “shall have the privilege of being present at the hearing,” and this hearing
did not meet that standard.2 See id.
The SAB erred in excluding Appellant from the hearing room during the testimony of an
adverse witness, and as a result, Appellant did not receive a fair hearing. Point two is granted.
III. CONCLUSION
The trial court’s judgment affirming the decision of the SAB to terminate Appellant’s
employment with the District is reversed and remanded for a new hearing and proceedings
consistent with this opinion.
ROBERT M. CLAYTON III, Judge
Patricia L. Cohen, P.J., and
Roy L. Richter, J., concur.
2
We also note that the SAB did not create an evidentiary record to support the Superintendent’s contention at the
hearing that P.H. would be intimidated by Appellant’s presence. The Superintendent and the hearing officer merely
assumed that P.H. would be intimidated based on her age and the severity of the accusations, but those assumptions
are not based on any testimony from P.H. or other relevant evidence. However, even if such evidence existed, the
SAB cites no controlling authority to suggest that Appellant could be properly excluded from the hearing, given the
mandatory language of section 168.221.3.
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