Vanelli v. Reynolds School District No. 7, 667 F.2d 773 (9th Cir. 1982)

Shortly after the second semester had begun, Vanelli learned that two female students had been dropped from one of his classes. Soon thereafter, two more female students were removed from his class. The girls complained that Vanelli stared at their physical attributes and made statements with sexual overtones. More specific incidents were detailed by the girls, but most seemed innocuous or susceptible to differing interpretations. Based on these complaints, the assistant principal informed Vanelli his contract would not be renewed at the end of the school year. As a consequence, Vanelli contacted a teachers’ organization to represent him at a meeting with the school superintendent slated for March 9, 1976, to discuss the complaints. A day before the scheduled meeting, however, a fifth complaint by a female student surfaced. Vanelli was informed the next day that the meeting for that night would be to discuss his immediate dismissal rather than the complaints.

Vanelli objected to the procedures on several grounds: (1) the board was not impartial because it had dismissed him in the prior March 11 meeting; (2) the board placed the burden of proof on him to demonstrate that his prior dismissal was “wholly inappropriate” or “wholly without basis in fact”; and (3) one of the witnesses against him was the girlfriend of the son of one of the school board members.

See, e.g., Roth, supra, 408 U.S. at 576-77, 92 S.Ct. at 2708-09; Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952); Kendall v. Board of Educ. of Memphis City, 627 F.2d 1, 4 (6th Cir. 1980).

Vanderzanden v. Lowell School Dist. No. 71, 369 F.Supp. 67, 73 (D.Or.1973). See Davis v. Oregon State Univ., 591 F.2d 493, 497 (9th Cir. 1978); Papapodopoulos v. Oregon State Bd. of Higher Educ., 14 Or.App. 130, 169, 511 P.2d 854, 872 (Ct.App.), rev. denied (1973), cert. denied, 417 U.S. 919, 94 S.Ct. 2626, 41 L.Ed.2d 224 (1974). Property interests, of course, are “created ... by existing rules or understandings that stem from an independent source such as state law .... ” Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); see Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976); Perry v. Sindermann, 408 U.S. 593, 602 n.7, 92 S.Ct. 2695, 2700 n.7, 33 L.Ed.2d 570 (1972). The school district refers us to the recent Oregon Court of Appeals opinion in Maddox v. Clackamas County School Dist. No. 25, 51 Or.App. 639, 643, 626 P.2d 924, 926 (Ct.App.), rev. granted, (1981), arguing the court ruled that Or.Rev.Stat. § 342.835 confers no property interest to probationary teachers in their jobs. The opinions in the Maddox case are not pellucid. The case seems to have involved two technical questions of state administrative procedure, namely, the degree of discretion in the school board and whether a dismissed probationary teacher should appeal to the Fair Dismissal Appeals Board or to a Circuit Court by writ of review. Read literally, the Maddox opinion does establish procedural protection for probationary teachers, and therefore a property interest of some sort, but how much and what kind is murky. Although Maddox arguably could stand for the broader proposition that probationary teachers have at best a minimal property Ínterest in their jobs, we are not bound to accept that state law interpretation of an intermediate state court, especially when it is ambiguous at best and we are persuaded the Oregon Supreme Court would not so hold. See, e.g., Commissioner v. Estate of Bosch, 387 U.S. 456, 465, 87 S.Ct. 1776, 1782, 18 L.Ed.2d 886 (1967); see Commercial Union Ins. Co. v. Ford Motor Co., 640 F.2d 210, 212 (9th Cir. 1981); Plyler v. Wheaton Van Lines, 640 F.2d 1091, 1093 (9th Cir. 1981). To read Maddox as defendants would have us do would be both analytically unsound and contrary to the precedents cited in the text. The two cases cited by the Maddox court in support of the proposition at issue here involved instances of nonrenewals of contracts, rather than midyear dismissals — a critical distinction. While on remand, should the Oregon Supreme Court, which has granted review of the case, decide that probationary teachers have no protectible property interest, the damages award must be adjusted accordingly. The school district also cites Bishop v. Wood, 426 U.S. 341, 345, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976) to support its contention that appellant “held his position at the will and pleasure” of the school district. Bishop is distinguishable in that the key fact there, absent in this case, was that the petitioner’s employment contract contained no provision for duration or termination of employment. Id. at 345 n.9, 96 S.Ct. at 2078 n.9.

Roth, supra, 408 U.S. at 573, 92 S.Ct. at 2707. See Davis v. Oregon State Univ., 591 F.2d 493, 498 (9th Cir. 1978). As noted by the court in Stretten v. Wadsworth Veterans Hosp., 537 F.2d 361 (9th Cir. 1976): “[One’s] liberty interest is implicated only when the state makes a ‘charge against him that might seriously damage his standing and associations in his community.’ ” Id. at 365 (quoting Roth, supra, 408 U.S. at 573, 92 S.Ct. at 2707).

Codd v. Velger, 429 U.S. 624, 627-28, 97 S.Ct. 882, 883-84, 51 L.Ed.2d 92 (1977), Bishop v. Wood, 426 U.S. 341, 348, 96 S.Ct. 2074, 2079, 48 L.Ed.2d 684 (1976), Paul v. Davis, 424 U.S. 693, 710-12, 96 S.Ct. 1155, 1164-65, 47 L.Ed.2d 405 (1976).

The school district dismissed Vanelli on grounds of immoral conduct, conduct that he still maintains was innocent. The lower court found public disclosure sufficient to affect adversely appellant’s opportunities for future employment, a finding which is not clearly erroneous. The stigma associated with appellant’s termination entitled him to procedural due process protections.

The lower court’s ruling that the post-termination hearing provided sufficient protection for the liberty interest finds no support in the decisional law. Given the premise that the property interest required a pre-termination hearing, the liberty interest easily could have been protected in the same proceeding. Under the balancing test of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), as discussed infra, even the temporary cloud on appellant’s reputation could be sufficient to overcome minimal administrative burdens and to warrant a pre-termination hearing to comport with due process. Even though a post-termination hearing provides one with an opportunity to clear his name, as well as to regain any improperly withheld benefits, compensable damages may arise for mental and emotional distress arising from the initial denial of due process. See Carey v. Piphus, 435 U.S. 247, 259-64, 98 S.Ct. 1042, 1050-52, 55 L.Ed.2d 252 (1978). In reaching its conclusion, the lower court relied on a discussion in the plurality opinion of Arnett v. Kennedy, 416 U.S. 134, 156-58, 94 S.Ct. 1633, 1645-46, 40 L.Ed.2d 15 (1974). But a majority of the Justices did not adopt this position, and subsequent cases demonstrate the presumption favoring pre-termination hearings. See, e.g., Ingraham v. Wright, 430 U.S. 651, 678-79, 97 S.Ct. 1401, 1416, 51 L.Ed.2d 711 (1977); Goss v. Lopez, 419 U.S. 565, 574-75, 95 S.Ct. 729, 736, 42 L.Ed.2d 752 (1975). Two recent cases in this circuit are not to the contrary. In Ybarra v. Bastian, 647 F.2d 891, 893-94 (9th Cir. 1981), the court held that a criminal trial subsequent to an employee’s termination provided adequate protection for any liberty interest that might have been implicated. Though the court concluded that no liberty interest existed, the case is distinguishable in that the circumstances that prompted the dismissal, an alleged murder of a fellow employee, created an emergency situation. It is further likely that the employee was provided with sufficient notice and opportunity to be heard at the indictment stage. In Graves v. Duganne, 581 F.2d 222, 224 (9th Cir. 1978), the court originally had held a post-termination hearing sufficient to protect a liberty interest in a non-renewal case, but later acknowledged its opinion had been vitiated and presumably retracted it. Graves v. Duganne, 620 F.2d 749 (9th Cir. 1980).

Immediate action short of outright dismissal, perhaps suspension, did appear justified under the circumstances. The state was nevertheless required to provide appellant an opportunity to respond to the accusations before his permanent dismissal.

We cannot agree with appellant’s contention that the board members’ prior participation in the March 11 termination decision, without more, rendered them impermissibly biased at the subsequent hearing. See Busche v. Burkee, 649 F.2d 509, 517 (9th Cir. 1981); Skehan v. Board of Trustees, 590 F.2d 470, 494 (3d Cir. 1978), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 41 (1979). The district court was correct in finding as a factual matter that appellant failed to rebut the presumption of honesty and integrity applicable to the April 7 hearing. See Hortonville Joint School Dist. No. 1 v. Hortonville Educ. Ass’n, 426 U.S. 482, 497, 96 S.Ct. 2308, 2316, 49 L.Ed.2d 1 (1976); Withrow v. Larken, 421 U.S. 35, 47, 55, 95 S.Ct. 1456, 1464, 1468, 43 L.Ed.2d 712 (1975). The Supreme Court in Withrow v. Larken, supra, has upheld the right of a state medical examining board to adjudicate the merits of a disciplinary action in which the board itself had investigated and filed charges. In Hortonville Joint School Dist. No. 1 v. Hortonville Educ. Ass’n, supra, the Court went one step further, holding that a state school board’s prior involvement in a labor dispute with striking teachers did not prevent it from deciding whether those teachers should be dismissed as a result of that unlawful strike. In both cases, the Court stressed the absence of any personal or financial stake in the outcome sufficient to create a conflict of interest or any personal animosity towards the parties in the proceedings. Id. at 491-92, 96 S.Ct. at 2313-14; 421 U.S. at 54-55, 95 S.Ct. at 1468. Viewed against this background, we cannot agree with appellant that a school board may not rehear its own termination decision in order to comply with procedural due process. Contrary to Withrow and Hortonville, appellant cites no conflict of interest or claims no personal antagonism shown by the board arising out of the prior dismissal. The board’s decision to hold another hearing to grant appellant due process protections is in practical effect no different from a judge or administrator rehearing his own decision after reversal and remand.

We do not reach the question whether under these circumstances there is necessarily a right to cross-examine the complaining witnesses.

Citing a footnote in Withrow, appellant contends both Hortonville and Withrow are inapposite to the present action because neither involved an agency which reviewed and evaluated a prior decision. Specifically, appellant relies on the following sentences: “[Wjhen review of an initial decision is mandated, the decisionmaker must be other than the one who made the decision under review .... Allowing a decisionmaker to review and evaluate his own prior decisions raises problems that are not present here.” 421 U.S. at 58 n.25, 95 S.Ct. at 1470 n.25 (citations omitted). Review, in the ordinary sense of appeal to a different authority, was not mandated here, and appellant’s interpretation of Withrow is precluded by Hortonville. Appellant relies on Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), a case relating the due process constraints on parole revocation decisions. But the due process limitations in Morrissey have not been extended to the school board context. As the Hortonville Court stated: “General language about due process in a holding concerning revocation of parole is not a reliable basis for dealing with the School Board’s power as an employer to dismiss teachers for cause.” 426 U.S. at 491, 96 S.Ct. at 2313. Rather, the relevant focus should center on the nature of the bias and the nature of the interests at stake. Appellant’s argument that he improperly shouldered the burden of proof is similarly without merit. There is evidence in the record indicating that the school board merely put the burden of coming forward on appellant, while it maintained the burden of persuasion. Administrative hearings of this type, moreover, need not have all the procedural protections of trials. See Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267 (1975). Thus, assuming the burden of proof was imposed on appellant, at least two courts have upheld similar burdens against constitutional due process challenges. Chung v. Park, 514 F.2d 382, 386-87 (3rd Cir.), cert. denied, 423 U.S. 948, 96 S.Ct. 364, 46 L.Ed.2d 282 (1975); Vanderzanden, supra, 369 F.Supp. at 74. See generally K. Davis, Administrative Law of the Seventies, § 14.14 (1976).

The vote of the Board was 6 to 0 for discharge. The only alleged impropriety during the Board’s deliberations was that the Board member in question made a vague reference to the fact that his son had some hearsay information as to some matters as to which there was clear, direct, and convincing testimony by the participants. It is clear from the record before Us that this comment in no way affected the outcome of the Board’s decision or prejudiced appellant. Cf. United States v. Hearst, 638 F.2d 1190, 1193-94 (9th Cir. 1980) (must demonstrate actual, as opposed to potential, conflict of interest on part of lawyer to establish violation of sixth amendment right to assistance of counsel).