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Robinson v. Morrill County School District #63

Supreme Court of Nebraska

April 26, 2018

Patrick Robinson, appellant,
Morrill County School District #63 and Morrill County Board of Education, appellees.

         1. Schools and School Districts: Termination of Employment: Teacher Contracts: Evidence: Appeal and Error. The standard of review in an error proceeding from an order of a school board terminating the contract of employment of a certificated employee is whether the school board acted within its jurisdiction and whether there is sufficient evidence as a matter of law to support its decision. In this context, evidence is sufficient as a matter of law if a judge could not, were the trial to a jury, direct a verdict.

         2. Statutes: Judgments: Appeal and Error. To the extent the assignments of error on appeal present issues of statutory interpretation or issues of law, an appellate court reaches an independent conclusion irrespective of the decision made by the court below.

         3. Schools and School Districts: Attorneys at Law. Neb. Rev. Stat. § 79-513 (Reissue 2014) expressly authorizes school boards to hire legal counsel when it deems it necessary or advisable.

         4. Due Process. The concept of due process embodies the notion of fundamental fairness and defies precise definition.

         5. Constitutional Law: Due Process. When a person has a right to be heard, procedural due process includes notice to the person whose right is affected by a proceeding, that is, timely notice reasonably calculated to inform the person concerning the subject and issues involved in the proceeding; a reasonable opportunity to refute or defend against a charge or accusation; a reasonable opportunity to confront and cross-examine adverse witnesses and present evidence on the charge or accusation; representation by counsel, when such representation is required by constitution or statute; and a hearing before an impartial decisionmaker.

         [299 Neb. 741] 6. Judges: Juries: Administrative Law: Presumptions: Proof. As a general rule, decisionmakers are presumed to be impartial and unbiased; the burden of showing otherwise rests on the party making the assertion.

         7. Schools and School Districts: Teacher Contracts: Evidence. A school board can consider all relevant conduct when determining whether to cancel a contract.

         8. Teacher Contracts: Termination of Employment: Words and Phrases. For purposes of cancellation of an employment contract under Neb. Rev. Stat. § 79-827 (Reissue 2014), "incompetency, " as defined by Neb. Rev. Stat. § 79-824(4)(a) (Reissue 2014), includes "demonstrated deficiencies or shortcomings in knowledge of subject matter or teaching or administrative skills."

         9. Teacher Contracts: Words and Phrases. Teacher incompetency is not measured in a vacuum or against a standard of perfection but, instead, must be measured against the standard required of others performing the same or similar duties.

         10. Teacher Contracts: Termination of Employment: Words and Phrases. For purposes of cancellation of an employment contract under Neb. Rev. Stat. § 79-827 (Reissue 2014), "neglect of duty" generally requires evidence of something more than occasional neglect. Evidence that a particular duty was not competently performed on certain occasions, or evidence of an occasional neglect of some duty of performance, in itself, does not ordinarily establish incompetency or neglect of duty sufficient to constitute just cause for termination.

         11. ___: ___: ___. For purposes of cancellation of an employment contract under Neb. Rev. Stat. § 79-827 (Reissue 2014), "unprofessional conduct" must be conduct directly related to the fitness of the employee to act in his or her professional capacity.

         12. ___: ___: ___. For purposes of cancellation of an employment contract under Neb. Rev. Stat. § 79-827 (Reissue 2014), "insubordination" is the absence of subordination or submission, resistance to or defiance of authority, refusal to obey orders, refractoriness, or disobedience.

         13. Courts: Appeal and Error. In an error proceeding, issues not presented to the district court are not preserved for appellate review.

          Appeal from the District Court for Morrill County: Leo P. Dobrovolny, Judge. Affirmed.

          Robert M. Brenner, of Robert M. Brenner Law Office, for appellant.

         [299 Neb. 742] Steven W. Olsen and John L. Selzer, of Simmons Olsen Law Firm, P.C., for appellees.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ.

          PER CURIAM.

         A school board canceled the contract of a certificated employee after holding a formal hearing. The employee filed a petition in error in the district court, which affirmed the cancellation.[1] The employee now appeals, raising various issues regarding notice and due process in addition to challenging the merits of the cancellation. We affirm.

         I. FACTS

         In the fall of 2013, Patrick Robinson was hired as the curriculum and assessment coordinator at Bridgeport Public Schools pursuant to a contract with the Bridgeport Public Schools Board of Education (school board).[2] In February 2015, Robinson was notified his contract was being canceled. He requested and received a hearing before the school board, and the following evidence was adduced.

         1. Veterans Day Incident

         In November 2013, the community of Bridgeport, Nebraska, held a Veterans Day celebration at the school on a nonschool day. A portion of the parking lot was reserved for veterans attending the celebration. Robinson, who served in Iraq with the U.S. Army, came to the school that day to work and parked in the veteran's parking area. A teacher, and later an administrator, approached him and asked him to move his car, explaining the intent was to reserve the parking spaces for older or disabled veterans who would have difficulty with mobility. Robinson became angry and refused to move his [299 Neb. 743] car. Robinson generally felt he was treated unfairly during the incident.

         2. December 2013 Incident With Student

         In December 2013, two teachers at Bridgeport observed an eighth grade student standing at her locker, laughing. When they asked what she was laughing about, the student told them Robinson had left a funny note in her locker. She told the teachers she thought Robinson was very funny and said "we game or do something together." The teachers thought it was odd that Robinson had accessed the student's locker. They understood the student's comment to relate to some sort of online gaming activity and were concerned that Robinson and the student may be involved in an inappropriate relationship. The teachers informed a school administrator of the incident and their concerns, which was a reporting procedure that conformed with school policy.

         An administrator investigated the incident by questioning the student, her parents, and Robinson, and determined there was no inappropriate conduct. Robinson received a letter from the administration on January 16, 2014, stating the incident had been investigated and no wrongdoing was found.

         3. Fellow Teacher Breach of Confidentiality

         Before Robinson received the January 16, 2014, letter reporting no wrongdoing had been found, one of the reporting teachers told the athletic director about the locker incident. The athletic director then told Robinson that two teachers had reported him, and Robinson understood the teachers had accused him of grooming a student for a sexual relationship. Robinson informed administrators about the reporting teacher's breach of confidentiality. The administration conducted an investigation and reprimanded the teacher for telling the athletic director about the report. The written report of this investigation was dated March 6, 2014, and reiterated that [299 Neb. 744] Robinson had not engaged in an inappropriate relationship with a student. The report also stated the superintendent had investigated and had found there was no harassment directed toward Robinson after the December 2013 incident.

         4. Robinson's General Conduct

         Beginning in January 2014, Robinson started refusing to come out of his office at school to meet or interact with other staff members. Robinson was upset about the allegations and the administration's response. Robinson believed school employees continued to talk about the incident and perpetrate the rumor that he was a sexual predator. He felt his reputation had been tarnished and did not think the administration had acted to stop the rumors or protect his reputation.

         Robinson complained to both the teachers' union and the Department of Education about the administration's failure to protect him from what he perceived as continued accusations after the December 2013 incident. He informed others that the principal had harassed and disparaged him and should be fired. He told a school board member that the superintendent should "back off" from evaluating him. In early January 2014. Robinson received emails from other school employees asking general questions about the school's curriculum and interpreted the emails as attacks on his decisionmaking ability and competence. In February 2014, Robinson was told by administrators as part of his employee evaluation that he needed to start interacting with fellow staff members.

         At Robinson's request, he met with the school board in February 2014 to discuss the concerns he had with the school administration. After the meeting, Robinson gave a written summary of his complaints to an attorney the school board hired to investigate the matter. Robinson subsequently refused to meet with this attorney.

         Chuck Lambert took over as superintendent at Bridgeport in June 2014, while the situation with Robinson was ongoing. Lambert met with Robinson in June and told him he would look into his complaints, but asked Robinson to view the new [299 Neb. 745] administration as a clean slate and an opportunity to work to move forward. An attorney representing the school board sent a letter to Robinson's attorney in July addressing Robinson's continuing concerns about the December investigation and stating the school district found no wrongdoing and considered the matter closed.

         When classes started in the fall of 2014, Robinson continued to seclude himself in his office. He avoided interacting with school staff except through email. At least once in August 2014, Robinson perceived a communication relating generally to school business as a personal attack on him. Robinson testified at the hearing that he considered his work environment hostile, because he never received an apology after the December 2013 incident and did not think he had been told he was cleared of any wrongdoing over the incident with the student.

         5. August 28, 2014, Union Meeting

         On August 28, 2014, after the school term had started, the teachers' union held a meeting at the community center in Bridgeport. The meeting was called by legal representatives of the union, and its general purpose was to inform members of the union that Robinson had filed a complaint against the union, alleging failure to provide representation. At this meeting, the union explained how Robinson's complaint would be addressed and warned the members not to engage in any type of retaliatory action toward Robinson. Robinson was not invited to the meeting, but was aware it had been scheduled. He asked another Bridgeport teacher to attend the meeting, hide a tape recorder in her backpack, and record the meeting for him. She did so.

         Robinson listened to the recording the next day and was upset by what he heard. Generally, the recording demonstrated that although the meeting was intended as an informational session and an opportunity for counsel to give general legal advice to union members, various attendees made unflattering [299 Neb. 746] comments about Robinson. Several noted they were afraid of him, and one expressed fear that Robinson might bring a gun to school. One referred to Robinson as a "creep." Another said he was not a "normal, stable-minded person." When the attendees were advised to let the administration know if Robinson made a threatening comment, one stated, "But I think that's how this all got started." Another attendee warned everyone to avoid the athletic director, explaining that the athletic director was "on [Robinson's] side."

         The day after the union meeting, the Bridgeport principal sent Robinson an email asking if Robinson could meet with him and several teachers to review some new curriculum. Robinson perceived the email as a threat, apparently because he thought the curriculum meeting would be attended by some of the same teachers who made unflattering comments about him at the union meeting. Robinson forwarded the principal's email to Lambert, the superintendent. Robinson informed Lambert that he perceived the proposed meeting as an attempt to make him uncomfortable by forcing him to face his accusers, and he declined to attend unless Lambert ordered him to do so. Robinson also forwarded Lambert an email he received from an administrator requesting some staff training and informed Lambert he did not wish to meet with a certain staff member because she was the leader of a "lynch mob" against him. Additionally, Robinson emailed Lambert to inform him that, because of what had been said about him at the union meeting, he would not attend any athletic events involving the school.

         On Monday, September 1, 2014, Robinson emailed Lambert and requested that Lambert have a school district representative contact Robinson's attorney. The next day, Robinson sent Lambert a reply to an email that was 6 months old and related to the school safety plan. Robinson's reply pointed out that the plan contained various spelling errors. Lambert responded by thanking Robinson for the input but asking why Robinson was responding to such an old email. After sending Lambert two [299 Neb. 747] additional emails generally indicating that he thought Lambert was attacking him, Robinson went home sick.

         6. Meeting With Superintendent

         Lambert did not know about the August 28, 2014, union meeting until after it occurred. Once he received the emails from Robinson on August 29 and September 1 and 2, Lambert was concerned about Robinson's behavior, so he went to Robinson's office to talk with him. Robinson tape recorded the conversation without Lambert's knowledge. During this conversation, Lambert asked Robinson, "Do you see that your struggle with the past is affecting you now?" And, "Do you understand that the feelings that you have . . . will make it really tough for us to function and get to where we need to be?" Robinson responded, "Yes, I get that completely." The record shows that during 2013 and 2014, Robinson also tape recorded other meetings with school employees without their knowledge or consent.

         On September 4, 2014, Lambert gave Robinson a letter informing him he was being suspended with pay. The letter referenced Robinson's inability to work collaboratively with other school personnel.

         In February 2015, Lambert notified Robinson that the school was canceling his contract. Robinson requested and received a hearing before the school board.[3] After the hearing, the school board voted unanimously to cancel his contract. Robinson filed a petition in error in the Morrill County District Court, [4]w ...

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