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In re Appeal of Farmington School District

Supreme Court of New Hampshire

April 7, 2016

APPEAL OF FARMINGTON SCHOOL DISTRICT (New Hampshire State Board of Education)

Argued: November 10, 2015

State Board of Education

James F. Allmendinger, of Concord, NEA-New Hampshire, by brief and orally, for Demetria McKaig.

Soule, Leslie, Kidder, Sayward & Loughman, P.L.L.C., of Salem (Peter C. Phillips on the brief and orally), for Farmington School District.

American Civil Liberties Union of New Hampshire, of Concord (Gilles R. Bissonnette on the brief), and Backus, Meyer & Branch, LLP, of Manchester (Jon Meyer on the brief), for American Civil Liberties Union of New Hampshire, as amicus curiae.

Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief), John H. Henn, of Boston, Massachusetts, on the brief, and Foley Hoag LLP, of Boston, Massachusetts (Sarah S. Burg and Amanda S. Hainsworth on the brief), for Planned Parenthood of Northern New England, as amicus curiae.

Theodore E. Comstock, executive director and general counsel, and Barrett M. Christina, staff attorney, of Concord, New Hampshire School Boards Association, by brief, for New Hampshire School Boards Association, as amicus curiae.

HICKS, J.

Farmington School District (district) appeals a decision of the State Board of Education (state board) reversing the decision of the Farmington School Board (local board) not to renew the employment contract of Demetria McKaig, a guidance counselor at Farmington High School. McKaig cross-appeals the state board's decision and argues that she is entitled to reinstatement with back pay and benefits. We affirm in part, reverse in part, order that McKaig be reinstated to her former employment, and remand to the board for further proceedings to determine whether she is entitled to additional remedies.

The state board's decision includes the following facts. McKaig was a high school guidance counselor employed by the district. In November 2012, a student - whom, consistent with the record, we will refer to as "Student A" - and her boyfriend told McKaig and another guidance counselor that Student A was pregnant and that she wanted to terminate her pregnancy. Student A was fifteen years old at the time.

McKaig suggested that Student A tell her mother about the pregnancy, but Student A refused. Student A and her boyfriend told McKaig that they did not want Student A's mother to know about the pregnancy because they were afraid for their safety. McKaig researched Student A's options and found New Hampshire's parental notification and judicial bypass laws for minors seeking an abortion. See RSA 132:33, :34, II (2015).

After meeting with Student A, McKaig and the other guidance counselor met with the principal and other school staff to discuss the issue of Student A's pregnancy. The principal expressed his view that the school should inform Student A's mother about the pregnancy. McKaig disagreed, asserting that Student A had a right to keep the pregnancy confidential. The meeting concluded without a decision about whether to contact Student A's mother.

After the meeting, McKaig spoke with Attorney Barbara Keshen of the New Hampshire Civil Liberties Union about Student A's situation. McKaig provided Keshen with Student A's initials, age, and grade. McKaig and Keshen also discussed Student A's potential privacy rights. Keshen's opinion was that the judicial bypass law protected the confidentiality of Student A's pregnancy and the fact that she was contemplating an abortion. McKaig relayed this opinion to Student A, and Student A made an appointment with a health center and another attorney to assist her with the judicial bypass proceedings.

On December 3, 2012, the principal instructed the school nurse to meet with Student A to tell her that the school would inform her mother about her pregnancy by December 5. That same day, McKaig told the principal about her conversation with Keshen and urged him to contact Keshen to discuss Student A's rights. The principal did not contact Keshen; however, on December 4, Keshen contacted him. He told Keshen that he had reviewed the parental notification and judicial bypass laws and determined that they did not prevent him from telling Student A's mother about the pregnancy.

Keshen instituted a petition for a temporary restraining order (TRO) against the principal in superior court to prevent the principal from contacting Student A's mother. McKaig was named as the petitioner "ON BEHALF OF [Student A]"; she was not named in her individual capacity. The petition did not include Student A's name. It instead referred to Student A by her initials and mentioned her age and grade, and that she was pregnant.

The district's attorney filed a special appearance on the principal's behalf, notifying the superior court that the principal would not inform Student A's mother about the pregnancy until the court held a hearing on the TRO petition. On December 10, Student A obtained a "judicial bypass order" from the superior court. The next day, the superior court granted the TRO petition.

Some four months later, on April 9, 2013, McKaig received a notice of nonrenewal from the superintendent; the notice did not advise her of the reasons for nonrenewal. McKaig subsequently requested a written statement of the reasons and a hearing before the local board under RSA 189:14-a (Supp. 2015). On May 24, 2013, the superintendent sent McKaig a statement of three reasons for her nonrenewal: insubordination, breach of student confidentiality, and neglect of duties. The record contains no indication that, prior to McKaig receiving the statement of reasons for nonrenewal, she was advised by any administration official that in connection with this matter she had been insubordinate, had breached student confidentiality, or had neglected her duties. After the hearing, the local board upheld McKaig's nonrenewal on the grounds of insubordination and breach of confidentiality, but not neglect of duties.

McKaig appealed to the state board, which found, pursuant to RSA 189:14-b, II (2008), that the local board's decision was "clearly erroneous." The state board reversed the local board's decision to uphold McKaig's nonrenewal, but it did not order McKaig's reinstatement or any other remedy. McKaig moved for reconsideration in light of the board's failure to specify a remedy; the state board denied her motion. The district appealed the state board's decision to this court. McKaig cross-appealed, arguing that we should affirm the state board's decision except for its failure to provide a remedy. McKaig contends that she was entitled to reinstatement with back pay and benefits.

RSA chapter 541 governs our review of the state board's decision. See RSA 21-N:11, III (2012). Under RSA 541:13 (2007), we will not set aside the state board's order except for errors of law, unless we are satisfied, by a clear preponderance of the evidence, that it is unjust or unreasonable. See Appeal of Hillsborough County Nursing Home, 166 N.H. 731, 733 (2014). In reviewing the state board's order, our task is not to determine whether we would have found differently or to reweigh the evidence, but, rather, to determine whether the state board's findings are supported by competent evidence in the record. Id. We review the state board's rulings on issues of law de novo. Id. "The party seeking to set aside the [state] board's order bears the burden of demonstrating that it is clearly unreasonable or unlawful." Appeal of Hopkinton Sch. Dist., 151 N.H. 478, 480 (2004).

The district first argues that the state board committed an error of law by "failing to correctly apply the clearly erroneous standard of review required under RSA 189:14-b, II." (Quotation omitted.) According to the district, the state board instead impermissibly engaged in de novo review, "unlawfully reach[ing] its own factual conclusions based upon the evidence presented at the local school board level rather than determin[ing] whether the [local board's] decision was supported by the evidence." We disagree.

RSA 189:14-b, II provides that "[t]he state board of education shall uphold a decision of a local school board to nonrenew a teacher's contract unless the local school board's decision is clearly erroneous." RSA 189:14-b, II. As the district correctly notes, we have "yet to consider the clearly erroneous standard . . . in RSA 189:14-b, II." However, as to decisions by trial courts, we review a trial court's "factual findings as a mixed question of fact and law under the clearly erroneous standard. Findings of fact are clearly erroneous if unsupported by the evidence . . . . Our inquiry is to determine whether the evidence presented to the trial court reasonably supports the court's findings, and then whether the court's decision is consonant with applicable law." Taylor-Boren v. Isaac, 143 N.H. 261, 264 (1998) (quotation omitted). We note that nothing in RSA 189:14-b, II's text indicates that the legislature intended not to assign "clearly erroneous" its usual and customary meaning. Thus, the state board applies the clearly erroneous standard as stated in Taylor-Boren v. Isaac when reviewing the decisions of local school boards.

We hold that the state board did not err in its application of RSA 189:14-b, II's clearly erroneous standard. The state board's decision shows that it reviewed the record and found that the record did not reasonably support the local board's conclusions that McKaig had been insubordinate or breached student confidentiality. Concerning insubordination, for example, the state board reviewed the district's policies cited by the local board and determined that the plain language of those policies did not require, among other things, that McKaig report to the superintendent before acting to prevent the principal from disclosing Student A's pregnancy. This conclusion was not a de novo factual determination. Rather, the state board accepted the local board's account of what McKaig did to assist Student A, but found clearly erroneous the local board's conclusion that McKaig's actions were inconsistent with district policy.

The district insists that the state board "unlawfully reached its own factual conclusions . . . rather than determine whether the [local board's] decision was supported by the evidence." The district argues that "de novo review is plainly evident in the conclusion section of [the state board's] decision, wherein it states that '[u]nder these particular circumstances, the record as a whole does not support a finding of insubordination or breach of confidentiality against McKaig.'" We fail to see how that statement in the state board's conclusion, which essentially mirrors our explanation of the clearly erroneous standard in Taylor-Boren, amounts to de novo review.

The district also points to several of the state board's allegedly impermissible factual conclusions, including that: "[t]here was nothing in the policy that required [McKaig] to appeal to the superintendent"; "the record reflected legitimate safety concerns"; "McKaig acted consistently with the policies and practices applicable to her role as guidance counselor"; and others. (Quotations omitted.) However, none of these conclusions evidence an impermissible de novo review. The first of the three is not a factual conclusion, but an interpretation of district policy, which interpretation is similar to a question of law. The clearly erroneous standard does not prohibit the state board's de novo review of the local board's interpretation of district policy. Cf. Taylor-Boren, 143 N.H. at 264 (including in the clearly erroneous standard an inquiry into not only "whether the evidence presented . . . reasonably supports the court's findings, " but also "whether the court's decision is consonant with applicable law"). As to the remaining conclusions, the state board pointed to significant evidence in the record or defects in the local board's reasoning, which, according to it, supported its conclusions and rendered the local board's contrary conclusions clearly erroneous. This is precisely the nature of the review that RSA 189:14-b, II requires the board to conduct.

Next, the district argues that it was unjust and unreasonable for the state board to reverse the local board's decision. See RSA 541:13. In doing so, the district challenges both of the state board's conclusions: (1) that McKaig was not insubordinate; and (2) that McKaig did not impermissibly disclose Student A's confidential information. Mindful of the significant deference that we owe the state board under RSA 541:13, we reject both of the district's challenges.

We hold that it was neither unjust nor unreasonable for the state board to rule that the local board's decision that McKaig was insubordinate was clearly erroneous. According to the local board, McKaig was insubordinate because she violated two school district policies: Policies 4244 and 4116. Policy 4244 states in part:

The best [course] of action for an employee to take to avoid an insubordination issue is to follow the directive given by the supervisor, then later question or challenge the directive through dispute resolution. If an employee disagrees with a policy, regulation, rule, procedure and/or directive, or thinks it is unfair or unnecessary, the employee should discuss the issue with the Building Administrator.

The local board concluded that McKaig violated this policy by "disregard[ing] the principal's role as decision maker and go[ing] to court against him, rather than up the chain of command." However, the state board explained that Policy 4244 did not require going "up the chain of command, " but only that McKaig speak "with the building administrator[, that is, the principal, ] if there was a disagreement with his decision." (Quotation omitted.) The state board concluded that McKaig complied with Policy 4244 by "keeping the principal informed as to her actions and research on behalf of Student A[, ] and urging him to contact" Keshen. The district argues that Policy 4244's reference to dispute resolution required McKaig to "attempt to resolve" her disagreement with the principal "above the level of [her] supervisor, " that is, with the superintendent, rather than to file "a lawsuit in [s]uperior [c]ourt." Thus, the district argues, the local board's conclusion that "McKaig was insubordinate in violation of Policy 4244" was not clearly erroneous, and the state board was "unjust and unreasonable in deciding that there 'was nothing in the policy that required [McKaig] to appeal to the superintendent.'"

Contrary to the district's contention, the plain language of Policy 4244 does not require district employees to appeal their disagreements "up the chain of command." (Quotation omitted.) Although the policy mentions dispute resolution, it refers to it as the "best, " not the only, course of action that an employee may take to "challenge [a] directive." Moreover, consistent with the state board's conclusion, the policy recommends that employees discuss policy disagreements with the building administrator, that is, the principal. Thus Policy 4244's text supports the state board's conclusion that, to avoid insubordination, McKaig was required only to discuss her disagreement with the principal, which she did. Moreover, the state board observed that "McKaig acted consistently with policies and practices applicable to her role as guidance counselor." Thus, the state board apparently recognized that McKaig had ...


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