Chief Justice TOAL.
Creola Young (Appellant) appeals the order of the circuit court, upholding the Charleston County School Board's (Board) decision not to renew Appellant's employment contract, on the ground that the Board violated Appellant's procedural due process rights. We reverse and remand for further proceedings.
Appellant taught fifth grade at E.B. Ellington Elementary School (School) in Charleston County for six years. During Appellant's tenure there, she received multiple warnings and feedback about inappropriate conduct and poor judgment with students, and her failure to provide instruction in a satisfactory manner.
On August 3, 2009, the Board issued a formal, written decision, finding the School submitted substantial evidence that Appellant incompetently provided instruction to her students, failed to obey a district directive and order of her supervisor, acted unprofessionally in carrying out her job duties, and was unfit for her position. Consequently, the Board decided not to renew Appellant's teaching contract for the 2009-2010 school year. Appellant filed a timely appeal to the circuit court, and the circuit court affirmed the decision of the Board.
STANDARD OF REVIEW
This Court's scope of review when reviewing decisions of school boards is governed by the Administrative Procedures Act (APA), S.C.Code Ann. § 1-23-380 (Supp.2011). Lee Cnty. Sch. Bd. of Trs. v. MLD Charter Sch. Acad. Planning Comm., 371 S.C. 561, 565, 641 S.E.2d 24, 26 (2007). A "review of the administrative law judge's order must be confined to the record." S.C.Code Ann. § 1-23-610(B) (Supp.2011). In this case, the Court is not called to review the substantive determinations of the Board, but only whether Appellant was afforded the procedural due process prescribed by our laws and our constitution. As such, the Court may
Id. § 1-23-610(B).
Appellant contends that the process afforded her was constitutionally deficient in one of two ways. First, Appellant
In Board of Regents of State Colleges v. Roth, 408 U.S. 564, 578, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the United States Supreme Court recognized that public school teachers have a property interest in continued employment and, commensurate with that property interest, the state must provide notice and an opportunity to be heard before a teacher may be deprived of the right to continued employment. Accordingly, the General Assembly has fixed a "mode of procedure" to be followed in teacher dismissal matters through the enactment of the Teacher Employment and Dismissal Act (TEDA). See S.C.Code Ann. §§ 59-25-410 to -530 (2004 & Supp.2011). Specifically, section 59-25-470 provides:
Id. § 59-25-470.
Promulgated before the passage of TEDA, section 59-19-110 of the South Carolina Code grants a school board general rule-making authority and states:
Id. § 59-19-110 (2004). The Board relies upon this provision for its authority to delegate the hearing function to a three member sub-committee of the Board.
This Court's decision in Pettiford v. South Carolina State Board of Education, 218 S.C. 322, 62 S.E.2d 780 (1950), elucidates the requirement that, at a minimum, a quorum of a school's board of education must review the evidence presented at a non-renewal or dismissal hearing in a meaningful way. In Pettiford, the Court considered the question of whether the State Board of Education violated the petitioner's due process rights when only two members of the State Board of Education heard the testimony of the witnesses rather than a quorum of that body. 218 S.C. at 341, 62 S.E.2d at 788-89. The Court held that the petitioner's due process rights were not violated by the delegation of the fact-finding function to hearing officers, so long as they presented their findings to the full board, and the full board then based its decision on such facts:
Id. at 345-6, 62 S.E.2d at 791 (emphasis added).
Assuming arguendo that the delegation authority given school boards in section 59-19-110 extends to dismissal or non-renewal hearings, this code section requires those persons designated to conduct a hearing "to make a report on this hearing to the board for its determination." S.C.Code Ann. § 59-19-110 (2004) (emphasis added). The Record in this case is devoid of any evidence that such a report was made to a quorum of the Board. What is clear to this Court is that a meaningful review, as contemplated by Pettiford, could not have taken place. It is undisputed that the hearing transcript was not available at the July 7, 2009 specially-called telephonic meeting of the Board.
The Board maintains the review consisted of an oral recitation of the arguments made at the non-renewal hearing by the three-member sub-committee that conducted the hearing. Even assuming such colloquy took place, an oral recitation of the hearing proceedings by Board members that voted against renewal, outside the presence of Appellant and her counsel, is inherently prone to bias. An indispensable component of procedural due process is that the persons legally responsible for making a decision must be informed and unbiased. See Garris v. S.C. Reinsurance Facility, 333 S.C. 432, 453, 511 S.E.2d 48, 59 (1998) ("Due process requires an administrative board, when acting in a quasi-judicial capacity, to consider all the evidence before deciding a particular question."). Accordingly, we find that a meaningful review requires some showing that the Board made an informed decision based on the evidence presented by both parties. Anything less deprives school district employees the rights afforded them under TEDA to have a dismissal or non-renewal recommendation adjudicated by the Board. See S.C.Code Ann. § 59-25-470 (Supp.2011) (following a hearing, the Board is responsible for rendering a decision).
The review undertaken by the Board of Appellant's non-renewal hearing was insufficient to satisfy the due process requirements of our constitution and of TEDA. Therefore, we reverse the Board's decision to uphold the District's recommendation of non-renewal of Appellant's teaching contract and remand the case for proceedings that are in-line with statutory
BEATTY and HEARN, JJ., concur.
PLEICONES, J., dissenting in a separate opinion in which KITTREDGE, J., concurs.
I respectfully dissent, and would affirm the circuit court's order.
I agree that a public school teacher must be afforded procedural due process before she can be dismissed from employment. I would hold that S.C.Code Ann. § 59-19-110 (2004) permits respondent (Board) "to designate one or more of its members to conduct any hearing in connection with any responsibility of the board and to make a report on this hearing to the board for its determination." Finally, I agree that due process entitled appellant to (1) adequate notice; (2) adequate opportunity for a hearing; (3) the right to introduce evidence; and (4) the right to confront and cross-examine witnesses. E.g., In re Vora, 354 S.C. 590, 582 S.E.2d 413 (2003). As I understand this case, appellant was afforded all these rights at her committee hearing. See also S.C.Code Ann. § 59-25-470 (2004).
The majority reverses the circuit court order upholding appellant's dismissal based upon a finding that the committee's oral report to the Board was inadequate to permit the Board to make a dismissal decision consonant with due process. I disagree. In Pettiford v. South Carolina State Bd. of Educ., 218 S.C. 322, 62 S.E.2d 780 (1950), this Court adopted the circuit court order finding a teacher had been afforded due process before having her teaching certificate revoked. That order notes:
Pettiford, at 344-346, 62 S.E.2d at 790-791.
Here, the Board's minutes show that the Board was in executive session for twenty minutes to discuss two personnel matters before voting to uphold the hearing committee's recommendation not to renew appellant's teaching contract. The majority concludes that because there was no written transcript of the hearing at the time the Board met, that because the minutes do not use the word `report,' and because neither appellant nor her counsel were there to represent her interests, "the Board could not have properly considered the evidence." This conclusion ignores the circuit court judge's finding that, based upon these same minutes, "a report and
The majority further finds that the Board's written order stating its decision was made "[a]fter considering the evidence presented and the arguments of counsel.... is a disingenuous representation of the procedure that actually took place." (emphasis removed). Unlike the majority, I have no special insight into what the Board considered during its executive session when it received the hearing committee's report, but would take it at its word that it considered both the evidence and the legal arguments.
Appellant was afforded procedural due process at her evidentiary hearing. The Board represents it considered the evidence and arguments during its executive session, at a meeting for which proper public notice was given,
KITTREDGE, J., concurs.