Opinion
May 13, 1966. Rehearing Denied September 30, 1966.
Appeal from the Circuit Court, Knox County, B. Robert Stivers, J.
H.M. Tye, Barbourville, for appellants.
Don B. Mills, Barbourville, John B. Breckinridge, Lexington, for appellee.
Appellant, Knox County Board of Education, terminated appellee's teaching contract after a hearing upon charges brought under KRS 161.790. On appeal to the circuit court the action of the Board was reversed, from which judgment the Board appeals to this court.
The charges against appellee were for "inefficiency, incompetency and neglect of duty". The notice of charges with which appellee was served made specific reference to and included a copy of a "supervisor's report". This report criticized appellee's conduct of classes, her lack of control and discipline over her students, and the destruction of classroom furniture. At the hearing substantial evidence was introduced concerning the inadequacy of records kept by appellee, although this deficiency did not appear in the charges. The Board found that appellee (1) failed and refused to keep proper order in her classes; (2) allowed the children to damage and destroy furniture and to use improper language, and failed to take appropriate corrective and disciplinary measures; and (3) failed to keep proper records. On the basis of these findings, the Board terminated her contract.
The circuit court on appeal found these proceedings arbitrary in almost every respect.
The first ground of alleged arbitrariness was the failure of the Board to furnish appellee with rules and regulations governing procedure in the conduct of the hearing. Apparently the Board did not have such rules and regulations, as the trial court found. Our first question is whether, as appellee insists, the Board is without power to conduct, or acts arbitrarily in conducting, a hearing such as this without written rules of procedure.
We find nothing in the statutes which requires a board of education to adopt formal procedural rules for the conduct of a hearing. While KRS 160.290(2) provides that each board "shall make and adopt * * * rules, regulations and by-laws" for the regulation and management of schools and the transaction of its business, we must construe this language sensibly to require such rules and regulations as are necessary and proper. Otherwise a school board could not legally perform any act without a pre-established written rule specifically pertaining to it. If we adopt appellee's theory, it would require each board to draft a comprehensive code of procedure for hearings on the termination of teachers' contracts, and if such code failed to cover a single phase of procedure sought to be invoked, the board could not proceed. We simply cannot construe this statute so unrealistically. The average school board would certainly lack the competency to draft such a code.
We believe that KRS 161.790(2), (3) adequately outlines the procedure required for such a hearing, although a board could adopt consistent supplementary rules. As pointed out in Board of Education v. Chattin, Ky., 376 S.W.2d 693, 697, a proper hearing of this nature simply requires "orderly procedure" and "fundamental fairness" and not "the esoteric formalities of a medieval jousting match". Within the scope of "fundamental fairness" we must recognize the necessity for procedural flexibility, particularly since these proceedings ordinarily must be conducted by laymen. As suggested in that case, under proper circumstances resort may be had to our Rules of Civil Procedure.
By virtue of a 1964 amendment, these are now subsections (3) and (4).
Appellee's plea for the requirement of technical rules of procedure is really an academic one. She makes no claim that the hearing was not a fair one, that she was denied any right to be fully heard, or that she was prejudiced by the manner in which the hearing was conducted. We find nothing illegal or arbitrary in the conduct of this hearing without written rules of procedure.
The trial court correctly found that the Board acted arbitrarily in sustaining the charges against appellee for failure to keep proper records. She was given no fair notice of this charge, as required by KRS 161.790(2). However, the Board sustained two other charges against her. If she was given adequate notice of these other charges and there was substantial evidence to support them, the Board's action may be upheld even though the charge of failing to keep records was not properly prosecuted. Hoskins v. Keen, Ky., 350 S.W.2d 467; Board of Education v. Chattin, Ky., 376 S.W.2d 693.
By virtue of a 1964 amendment, this is now subsection (3).
The trial court found the Board acted arbitrarily in sustaining the charges against appellee which involved the failure to keep proper order in her classroom and the failure to take appropriate corrective and disciplinary measures against students who were guilty of flagrant misconduct. The basis of this determination was that the charges against appellee were not sufficiently specific, and the evidence did not support the findings.
The charges against appellee were for "inefficiency, incompetency and neglect of duty". We agree that these charges, appearing in the "Notice of Termination