DocketNumber： No. 808SC756
Judges： Hedrick, Hill, Webb
Filed Date： 4/7/1981
Status： Precedential
Modified Date： 11/11/2024
In the court below, Judge Peel noted in his order that he had carefully reviewed the transcript of plaintiffs hearing before the Board, the Report of the panel of the Professional Review Committee, the court pleadings, and the arguments of counsel. Judge Peel stated:
Upon a full review of the whole record of the case, and having given independent consideration to the Report of the Professional Review Committee, the court is of the opinion, and so holds, that the charges brought by the Superintendent against the petitioner/appellant are not substantiated.
It is to this finding that defendant excepted and assigned error, arguing that the decision by the Board of Education was supported by substantial evidence and should have been upheld.
At the outset, we note that the trial judge’s order did not track the language of G.S. 150A-51, the statute which requires the judge to set forth the reasons for reversing the Board’s decision. We have, however, read his order to mean, in the applicable statutory language, that the decision by the Board of Education was unsupported by substantial evidence, G.S. 150A-51(5). Appellant has also read the order to state this. Our review of the trial court’s action is limited, therefore, to the question of whether the trial court erred in finding that the Board’s decision was not supported by substantial evidence.
This Court, having reviewed the whole record concerning plaintiffs alleged neglect of duty, agrees with the lower court and holds that the decision of the Board was not supported by substantial evidence and that plaintiff is entitled to reinstatement to his teaching position with the Goldsboro City Schools.
In reaching this result, we first review the proper role of the lower court in this case.
Plaintiff, in appealing to superior court for a review of defendant’s decision to terminate his employment, was acting pursuant to G.S. 115-142(n). The applicable scope of judicial review of defendant’s actions is set forth in G.S. 150A-51 which
[t]he substantial rights of the petitioners [here the plaintiff] may have been prejudiced because the agency findings, inferences, conclusions, or decisions are:
M= * *
(5) Unsupported by substantial evidence admissible under G.S. 150A-29(a) or G.S. 150A-30 in view of the entire record as submitted;
The predecessor statute to G.S. 150A-51, G.S. 143-315, was analyzed in a context analogous to the situation before us in the Supreme Court decision, Thompson v. Board of Education, 292 N.C. 406, 233 S.E. 2d 538 (1977). In Thompson, Justice Copeland wrote:
This standard of judicial review is known as the ‘whole record’ test and must be distinguished from both de novo review and the ‘any competent evidence’ standard of review. [Citations omitted.] The ‘whole record’ test does not allow the reviewing court to replace the Board’s judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo ... [Citation omitted.]. On the other hand, the ‘whole record’ rule requires the court, in determining the substantiality of evidence supporting the Board’s decision, to take into account whatever in the record fairly detracts from the weight of the Board’s evidence. Under the whole evidence rule, the court may not consider the evidence which in and of itself justifies the Board’s result, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn. [Citation omitted.]
Id. at 410, 233 S.E. 2d at 541.
In reviewing the whole record before us, it is important to note that the allegations plaintiff neglected his academic duties revolve solely around the events which occurred after 24 April 1979, the date plaintiff heard about the criminal charges against him. The record, which contained plaintiffs personnel file, showed that prior to the period in question, plaintiffs performance in every category had consistently been rated satis
Superintendent Johnson’s allegation concerning plaintiffs neglect of duty focused, therefore, on the issue of plaintiffs remaining away from school from 24 April 1979 until the Board’s suspension of plaintiff without pay on 10 May 1979. The Board, in its 12 December 1979 order found as fact that neither the principal nor the superintendent gave plaintiff permission to absent himself from his teaching position or told him to stay at school. The Board further found that plaintiffs decision not to return to his teaching duties was voluntary and constituted neglect of duty.
In addition to being completely silent as to plaintiffs prior “commendable” performance, these findings of fact failed to give any weight to the following clear and uncontroverted evidence: During the period of time from 24 April to 10 May, both the Principal of Middle School South and Superintendent Johnson were in contact with the plaintiff. Neither of these two men asked or told plaintiff to return to work. Neither advised him that his absence was being considered neglect of his contractual duties. It appears that both men acquiesced in plaintiffs decision not to return to the classroom. Furthermore, both Principal Charlton and Superintendent Johnson admitted at the hearing that, although they may not have told plaintiff so, they agreed that it would be in the best interest of plaintiffs students that plaintiff not return to the classroom while charges were pending against him. The record also is clear that plaintiffs continued absence was due to his concern for what was best for his students.
There was also uncontroverted evidence that plaintiff requested leave without pay. From the record, it appears that defendant never responded to this request, but, instead, sought plaintiffs dismissal. In this regard, the case before us is clearly distinguishable from two cases cited by defendant. Miller v.
The case of Board of Education v. Mathews, 149 Cal. App. 2d 265, 308 P. 2d 449 (1957), is also inapposite. The teacher in Mathews was dismissed because she failed on several occasions to return to the classroom after having been ordered to do so. Plaintiff, in this case, was never told to return to the classroom. Furthermore, Superintendent Johnson testified that it was normal practice to give an employee an opportunity to correct a situation before seeking a dismissal. Plaintiff never had that opportunity.
While we agree with defendant that the report of the panel of the Professional Review Committee should not have been solely determinative of the issue of plaintiffs neglect, we find that the record before us supports its conclusion that:
Mr. Overton made good faith efforts to communicate with his superintendent and principal and to cooperate with them. He was not told that he should return to the classroom under these circumstances. A reasonable man could assume that his continued absence was approved until he was instructed otherwise.
In reviewing the facts of this case, this Court has been acutely aware of the problems presented to a local school board by the events surrounding plaintiffs indictment. It is, at best, a difficult situation for school officials, teachers, and students. It would appear, however, that plaintiffs action in requesting a leave of absence until he could be cleared of criminal charges was the most prudent course of action. In light of all the evidence concerning plaintiffs general performance and, more particularly, concerning his performance from 24 April to 10 May 1979, this Court finds that defendant’s decision to dismiss plaintiff was not supported by substantial evidence.
Affirmed.