Opinion
Nos. 81-1087, 82-181.
Argued September 23, 1982.
Decided December 8, 1982.
Appeal from the Superior Court, James A. Belson and Tim Murphy, J.J.
Richard B. Nettler, Asst. Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel, Charles L. Reischel, Asst. Corp. Counsel, and Leo N. Gorman, Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellant.
Harvey M. Katz, Washington, D.C., for appellee Montgomery.
William B. Peer, Washington, D.C., for appellee Moore.
Before NEWMAN, Chief Judge, and KELLY and KERN, Associate Judges.
These are appeals by the District of Columbia from orders by the trial court in two separate cases reinstating the appellee in each of them to their respective positions as teachers and awarding them back pay and other benefits. The orders of the trial court were based on the conclusion that the dismissals of the appellees had not complied with the statutory mandate of Section 31-102 in effect when they had been dismissed as teachers. This section reads in pertinent part:
No . . . dismissal of any . . . teacher . . . shall be made by the Board of Education, except upon the written recommendation of the superintendent of schools.
We consolidated these cases for argument and decision. After review of the record and consideration of the District's arguments we are persuaded that the conclusions that the Board of Education failed to comply with the statute are correct and have substantial evidentiary support. However, the remedy granted appellee by the court in each case was premature in light of (a) the Supreme Court's teaching in Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978), and of (b) this court's decision in District of Columbia v. Gray, D.C.App., 452 A.2d 962 (1982).
Here, as in Gray, we conclude that a renewed proceeding before the Board of Education will enable the required procedure of dismissal to be followed. In accordance with our decision in Gray, we reverse and remand the cases to the trial court with direction to remand in turn the cases to the Superintendent of Schools and the Board of Education for compliance with D.C. Code 1973, § 31-102. Just as in Gray, the Superior Court upon remand shall retain jurisdiction for any further hearing it deems appropriate.
We reject appellees' argument that there is a meaningful distinction between the situation in Carey v. Piphus, and the situation in the instant cases because the agency (the Board of Education) never acted at all and hence could not be deemed, according to appellees, merely to have had a procedural deficiency in its action. Here, as in Carey v. Piphus and in D.C. v. Gray, the agency's action was defective because the requisite procedure was not followed.
Reversed and remanded.