Representing Appellant: Erin M. Kendall and Patrick E. Hacker of Hacker, Hacker & Kendall, P.C., Cheyenne, WY. Argument by Mr. Hacker.
Representing Appellee: Dennis W. Lancaster of Lancaster Law Offices, P.C., Afton, WY.
Before KITE, C.J., and HILL, VOIGT [*], BURKE, and DAVIS, JJ.
[¶ 1] Lincoln County School District Number Two (the District) notified Darryl Wadsworth, a continuing contract teacher in the District, that his contract was to be terminated on grounds of insubordination, incompetence, and poor work performance. Wadsworth requested a hearing before an independent hearing officer, and following that hearing, the Board of Trustees of Lincoln County School District (the Board) issued an order accepting the hearing officer's recommendation and conclusion that good cause existed for the termination of Wadsworth's teaching contract. On appeal, Wadsworth contends that the Board's order was entered in violation of the Wyoming Administrative Procedure Act (APA) and Wadsworth's due process rights because some members of the Board did not attend the entire hearing or otherwise review all of the evidence submitted to the hearing officer. We affirm.
[¶ 2] Wadsworth presents the following issues for our review:
1. Does it violate the Wyoming Administrative Procedure Act (APA) for the Lincoln County School District Number 2 Board of Trustees to fail to review all the evidence before making its decision in the termination hearing of Darryl Wadsworth?
2. Does it violate due process for the Lincoln County School District Number 2 Board of Trustees to fail to review all the evidence before making its decision in the termination hearing of Darryl Wadsworth?
3. Is the decision of the Board invalid because members of the board failed to review the complete record of the hearing, as required by Wyo. Stat. § 16-3-107(k)?
4. Did the district court err in concluding that violations of due process and the APA were not prejudicial to [Wadsworth]?
[¶ 3] The 2010-2011 school year was Wadsworth's tenth year working as a teacher at Star Valley High School in Afton, Wyoming. Wadsworth was a teacher in the Industrial Arts program and taught building construction, applied construction, woods, and cabinetry. In Wadsworth's applied construction class, Wadsworth would pick a construction project in the community, based on a bidding process, and under Wadsworth's supervision, the students would complete the project. On these projects, a contract would be entered into and the owner of the project would be responsible for the cost of materials plus an agreed upon percentage of the costs, which would be paid to the District to support the program.
[¶ 4] On September 13, 2010, Wadsworth was called to a meeting with the Star Valley High School principal, Shannon Harris, and the District superintendant, Jon Abrams, to discuss concerns they had with Wadsworth's work performance. A number of the concerns discussed during the September meeting related to a concession stand/restroom project Wadsworth's applied construction class worked on during the 2009-2010 school year, which, because of deficiencies in work and a failure to timely complete the project, resulted in nearly $100,000.00 of unanticipated costs to the District. Other concerns discussed during the meeting included unsafe practices at applied construction worksites, low student enrollment in Wadsworth's classes, and Wadsworth's public airing of complaints regarding the District's administration while visiting a local barber shop.
[¶ 5] Following the meeting on September 13, 2010, the District superintendent issued a memorandum summarizing the meeting, which memorandum is referred to throughout the record as the " FICA memo."  The FICA memo directed Wadsworth to: 1) adhere to an earlier Board directive requiring students to wear hard hats and steel-toed boots, in addition to safety glasses, on construction projects, unless and until Wadsworth received Board approval of an alternative safety plan; 2) provide to Principal Harris or her designee a building timeline and schedule for any future applied construction project; 3) establish better oversight of finances on any future applied construction project to ensure an understanding of the money that will be made by the project and that the budget makes allowances for student safety equipment; 4) follow his chain of command to address concerns with District administration rather than publicly discussing such complaints; and 5) market his industrial arts classes to increase student enrollment.
[¶ 6] On April 14, 2011, Wadsworth was called to a meeting with Principal Harris and her assistant principal, Homer Bennett, to discuss the FICA memo. Principal Harris summarized the discussion during the meeting as follows:
Homer Bennett and I met with Darryl Wadsworth on April 14, 2011 to follow-up on the FICA memo written by Supt. Abrams on September 13, 2010. In that meeting I asked Darryl about his follow through on the things he had been asked to complete as outlined in the FICA memo.
I asked if he had provided a building schedule to myself, or any of the principals regarding his current project? He said, " no" . I asked if he had a contract for the current project? He said, " no" . I asked if he had a set amount that they would earn on the current project? He said, " I don't know." I asked if there was a contract or any kind of agreement in place? He said that he had given a contract to Mr. Hansen but it was never filled out or signed by anyone. I then asked if he had provided a completion timeline and progress reports for the current project to myself or any other administrator? He said, " No, I did not." I then asked if the students had been wearing the required steel-toed boots and hard hats on the applied project this
year. He said, " No, but they have worn safety glasses." I then asked him if he had a project lined up for the coming school year. He said, " No, but I am currently working on that." He went on to say that he was waiting to see how many sections of the applied class he would have for the coming year before deciding on how big of a project to take on and once those numbers were set he would get to work on pinning down a project. I then asked him what he had done to market his class? He indicated that he had talked to business owners, contractors, and kids in his classes to encourage them to take other classes he offered. When I asked if he had done anything to market his classes to the incoming ninth grade students he said that the counselors had invited him to prepare something or present but that he had not done anything because the counselors met with those students every hour or so over a couple of days and he couldn't be at the middle school that much.
When I asked what he expected when he had failed to do every single thing the memo outlined he said, " I don't know, I guess I expected that you as the building principal should have followed up on those things and reminded me." When I asked why he didn't comply with or respond to my e-mail, dated 9-10-10, which clearly stated that if he wanted the Board to re-consider the requirement for requiring hard hats and steel-toed boots in the applied class that he needed to give me a proposal and rationale. He indicated once again that I should have sent more than one e-mail and followed up with him.
When I asked why after having a conversation with the Supt. and myself in September, and receiving a FICA memo from the Supt. which he signed and returned, he didn't do any of the things that he had been asked to do or that were clearly spelled out in the memo. He indicated that the memo " flusterated him and he just put it out of his mind."
[¶ 7] On April 14, 2011, during a regularly scheduled Board meeting, Superintendant Abrams met with the Board in executive session and presented his recommendation to terminate Wadsworth's teaching contract. The Board thereafter returned to its public meeting, and during the public portion of its meeting, the Board voted to accept the recommendation of Superintendant Abrams " to give termination notice pursuant to section 21-7-110 and 21-7-106 of Wyoming Statutes and to terminate the contract of Darryl Wadsworth."
[¶ 8] On April 15, 2011, the District issued Wadsworth written notice of its intent to terminate his teaching contract, effective May 27, 2011. The District cited incompetence, unsatisfactory work performance, and insubordination as grounds for the termination of Wadsworth's teaching contract. More specifically, the District cited to Wadsworth's failure to comply with the requirements of the FICA memo, including: a failure to require his students to wear hard hats and steel-toed boots; a failure to market his classes to increase student enrollment; a failure to secure a construction project for his applied construction class for the 2011-2012 school year; a failure to provide a building timeline and schedule for his applied construction 2010-2011 project; and a failure to follow his chain of command to address concerns with the school administration rather than voicing those concerns publicly.
[¶ 9] On April 22, 2011, Wadsworth timely requested a hearing before an independent hearing officer pursuant to Wyo. Stat. Ann. § 21-7-110. In keeping with the statute then in effect, the District and Wadsworth jointly selected a hearing officer, and an evidentiary hearing was scheduled for August 2-3, 2011.
[¶ 10] On July 28, 2011, Wadsworth filed a motion to void the termination proceedings or to continue the proceedings to allow for discovery related to Board bias and to voir dire the Board. Through this motion, Wadsworth asserted that the Board's consideration of Superintendant Abrams' recommendation
to terminate Wadsworth's teaching contract before the notice was issued to Wadsworth tainted the Board and made it impossible for Wadsworth to have a fair hearing before an impartial decision maker. The hearing officer denied Wadsworth's motion to void or continue the proceedings, denied the motion to conduct discovery, and ruled that the request to voir dire the Board was premature and could be raised when the hearing officer forwarded his recommended decision to the Board.
[¶ 11] An evidentiary hearing was held before the hearing officer on August 2-3, 2011. On August 18, 2011, Wadsworth renewed his motion to void the termination proceedings and to voir dire the Board. On August 19, 2011, the hearing officer denied the motion to terminate proceedings but granted the motion to voir dire the Board prior to its deliberations on any recommended decision by the hearing officer.
[¶ 12] On August 19, 2011, the hearing officer issued a recommended decision through a twenty-two page document entitled Findings and Recommendation of the Hearing Officer. The hearing officer recommended that Wadsworth's teaching contract be terminated for insubordination. In so recommending, the hearing officer found that the evidence supported some of the District's alleged grounds of insubordination, but not all of them. The hearing officer further found that the evidence did not support the District's allegations of incompetence and poor work performance. The hearing officer explained his conclusions, in part:
7. Incompetence is ordinarily based upon deficiencies in a teacher's classroom teaching performance. Actions demonstrating incompetence may include a lack of knowledge of the applicable subject matter a teacher is required to teach, an inability of the teacher to impart knowledge effectively to the students, and an incapacity to perform the duties of a teacher. See, generally, 68 Am.Jur.2d, Schools, § 211.
8. Mr. Wadsworth taught students effectively at Star Valley High School for 10 years. There is no evidence in this case that he was an incompetent teacher at any time, and, accordingly, the superintendant has failed to prove by a preponderance of the evidence that Mr. Wadsworth should be terminated for incompetence or unsatisfactory performance as a teacher.
9. The Wyoming Supreme Court has defined insubordination as " a constant or continuing intentional refusal to obey a direct or implied order, reasonable in nature, and given by and with proper authority." Board of Trustees v. Colwell, 611 P.2d 427, 434 (Wyo.1980). The elements of insubordination are:
a. Persistent course of
b. willful defiance in
c. refusing to obey
d. a reasonable
e. direct or implied order or rules and regulations
f. given by or with proper authority.
10. Based upon the elements of insubordination, the hearing officer finds that the superintendant has failed to prove by a preponderance of the evidence that the following matters constituted insubordination:
a. The so-called " barber shop" conversation, in which Mr. Wadsworth complained publicly about the school administration, may have been unwise or unprofessional, but, as a citizen, Mr. Wadsworth had a right to say the things he said, and they did not constitute insubordination.
b. Mr. Wadsworth's marketing of his classes to potential students may not have been everything that Ms. Harris or Mr. Abrams desired, but the evidence is that he made some reasonable efforts to recruit students and did not persistently and willfully refuse to market his classes. Mr. Wadsworth's conduct in this regard did not constitute insubordination.
11. Based upon the elements of insubordination, the hearing officer finds that the superintendant has proven by a preponderance of the evidence that the ...