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2004-UP-505 - Calhoun v. Marlboro County School District
THIS OPINION HAS NO PRECEDENTIAL VALUE

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT
BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING

EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Edna L. Calhoun,        Appellant,

v.

Marlboro County School District,        Respondent.


Appeal From Marlboro County
A. Victor Rawl, Circuit Court Judge


Unpublished Opinion No. 2004-UP-505
Heard September 16, 2004 – Filed October 8, 2004


AFFIRMED


W. Allen Nickles, III, Carl L. Solomon and Dona L. Guffey, all of Columbia, for Appellant.

Shirley M. Fawley, Vernie L. Williams and Kenneth L. Childs, all of Columbia, for Respondent.


 

PER CURIAM:  Dr. Edna L. Calhoun appeals the order of the circuit court affirming the decision of the Marlboro County School District Board (Board) not to renew her teaching contract.  We affirm.

FACTS/PROCEDURAL HISTORY

Calhoun taught in various Marlboro County schools for nearly fifty years.  Her most recent tenure was as a social studies teacher at Marlboro County High School (MCHS), which was located in the Marlboro County School District (District).

Rocky E. Peterkin became principal of MCHS in 1999.  During the course of the 1999-2000 school year, he observed the teaching performance of the MCHS faculty members.  While observing Calhoun’s teaching performance in the Fall of 1999, Peterkin developed “significant concerns” about the quality of Calhoun’s teaching performance, including “the method by which [her] lesson plans were planned and implemented … how objectives did not always mesh with the lessons being taught, and … about the lack of a verified teacher’s strategies (sic) to meet the needs of all students.”

Consequently, he met with Calhoun in December 1999 to advise her of his concerns and make her aware that in the spring 2000 semester he intended to “put her on a professional development plan with [the] full intent that the plan support and strengthen her abilities to teach.”  Peterkin wrote Calhoun in January 2000 to reiterate that a “professional development plan” would be devised for her “implementation during the second semester of the 1999-2000 school year” and that “the purpose of this plan is to provide additional administrative support for [her] classroom instruction.” 

The three-page development plan provided focus on the dual goals of improving Calhoun’s “Instruction Presentation” and “Facilitating Instruction” skills.  Within each goal, the plan included specific objectives and activities designed to achieve the objectives.  Descriptions of appropriate evidence that Calhoun had completed the activities were provided, as well as descriptions of relevant resources available to help Calhoun complete the activities, and “completion dates” for each activity.  Additionally, Calhoun was assigned to participate in “Cooperative Learning Sessions” to help improve her teaching skills.

Throughout the spring 2000 semester, a team of District and MCHS administrators observed Calhoun’s teaching performance and efforts to comply with the development plan.  Based on those observations, Peterkin determined Calhoun had not satisfactorily improved her teaching performance, and notified District superintendent Dr. Ray Brayboy of his concerns.  

In an April 3, 2000 letter, Brayboy informed Calhoun that Peterkin and she were to meet and develop an improvement plan for Calhoun to pursue in the 2000-2001 school year.  Brayboy further informed Calhoun that Peterkin would “also be monitoring and evaluating [her] performance to see that the necessary improvements are made.”  He added, “Your failure to address these concerns could place your continued employment with this District in jeopardy.”

Peterkin met with Calhoun on April 6, 2000, after which he summarized their meeting in a written letter to Calhoun.  In the letter, Peterkin wrote:

This letter is a follow-up to our conference on April 6, 2000, in which I shared with you my serious concerns with your overall teaching performance.  In particular, we discussed my continued reservations regarding your long- and short-range planning, delivery of instruction in accordance with District expectations, treatment of and communications with students, classroom environment, and classroom management skills.

Peterkin added that, based on observations of Calhoun’s teaching performance, he saw a “continued need for improvement,” and that she “would be provided with an Improvement Plan to assist” her.  He added that “[s]hould [she] fail in the upcoming year to complete successfully the S.T.E.P. process [1] or to demonstrate significant improvement in [her] teaching performance, [her] continued employment with this District may be in jeopardy.”

Peterkin later provided Calhoun with a detailed improvement plan for the 2000-2001 school year, which was designed to strengthen identified teaching deficiencies.  In a May 25, 2000 letter from Peterkin to Calhoun, he noted that she was given the plan because of “concerns about [her] overall teaching performance in the areas of accommodating the needs of special education students enrolled in [her] classes, delivery of instruction, time on task by [her] students, and classroom management.”  Peterkin sought to meet with Calhoun to discuss the plan and “any revisions” she wanted to make to the plan.  He reiterated his earlier warning that “if significant improvement in your job performance is not noted, your continued employment with this District will be in jeopardy.”

During the 2000-2001 school year, Calhoun’s teaching performance was evaluated under the S.T.E.P. plan by Peterkin and Assistant Principal Sequal Black.  Among other things, they observed that Calhoun was not following lesson plans, students were allowed to copy answers from their textbooks during tests, and that students were permitted to chose whether to even take social studies tests.  Of particular concern to Black were observations that the needs of special education students were not being met as required by federal law.  Calhoun’s preliminary S.T.E.P. evaluation results for the 2000-2001 school year were “unsatisfactory” with nine subsections rated “professional” and six rated as “needs improvement.”  Peterkin provided a formal, written remediation plan to address Calhoun’s teaching areas deemed unsatisfactory.  The plan included suggested professional readings, staff development training, and other specific ideas for improvement.

In spite of Calhoun’s “unsatisfactory” results on the S.T.E.P. evaluations, Peterkin recommended to Superintendent Brayboy that for the 2001-2002 school year Calhoun receive a third opportunity to improve her “overall teaching performance.”  Peterkin recommended continued assistance and a second formal S.T.E.P. evaluation for the 2001-2002 school year. 

Brayboy accepted Peterkin’s recommendations.  He advised Calhoun by letter dated April 5, 2001 that the District would renew her contract for the 2001-2002 school year, but that ongoing, serious concerns about her teaching performance motivated the District to continue formal evaluation of her teaching performance during the year.  He again noted that the District expected “significant and consistent progress in improving [her] overall teaching performance,” and that failure to do so satisfactorily would put her “continued employment with the District in jeopardy.”

For the 2001-2002 school year, Calhoun’s S.T.E.P. evaluation team consisted of District administrators Mildred Baker and Herbert Gould, a former MCHS principal.  Throughout the year, Calhoun was observed and provided written and oral assistance.  However, in the December 2001 initial review of her S.T.E.P. evaluation, she again received an unsatisfactory evaluation of her performance including “professional” ratings on ten S.T.E.P. subsections and “needs improvement” ratings on five subsections. 

Consequently, Baker, Gould, and Peterkin met with Calhoun for approximately three hours in December 2001 to review her results and provide Calhoun a written remediation plan with specific objectives, strategies, and deadlines.  The District gave Calhoun a “resource notebook” with materials “prepared to help her with her classroom teaching.”  However, Calhoun returned the binder to Baker’s office, stating she was not going to read the “stuff” in the binder.  In a written letter from Baker to Calhoun on February 4, 2002, Baker expressed her disappointment in Calhoun’s disregard of the resource notebook, and detailed examples of Calhoun’s noncompliance with several requirements of the remediation plan.  Ultimately, Calhoun failed to complete the majority of the remediation plan recommendations.

On March 8, 2002, Gould and Baker again met with Calhoun to review their final 2001-2002 S.T.E.P. evaluation results.  Calhoun received an overall rating of “unsatisfactory” with six subsections rated “professional” and nine subsections rated “needs improvement.”  During the conference, Gould reviewed each category of evaluation.  They asked Calhoun if there was anything she wanted Baker or him to address, and whether they could do anything further to assist her.  She responded that she thought she was doing what was expected of her.

Based on Calhoun’s two final “unsatisfactory” S.T.E.P. evaluations and  his personal evaluation of Calhoun, Peterkin recommended to Superintendent Brayboy that Calhoun not be given a teaching employment contract for the 2002-2003 school year.  Brayboy agreed, and notified Calhoun in an April 1, 2000 letter that he had recommended to the Board that her contract not be renewed.

In response to Brayboy’s recommendation, the Board conducted a review and held a hearing to review whether Calhoun’s contract should be renewed.  At the hearing, all parties were represented by counsel.

Peterkin, Gould, Baker, and Black each detailed numerous examples of how over a two-and-a-half year period Calhoun received repeated written notices concerning alleged deficiencies about her teaching performance.  This testimony further indicated the following: (1) Calhoun was given remedial programs that she largely ignored or failed to complete; and (2) Calhoun was subject to comprehensive informal and formal evaluations that consistently indicated her teaching performance was generally unsatisfactory with little signs of improving. 

During the hearing, Calhoun testified that prior to Peterkin’s initial expression of concern about her teaching performance in the fall of 1999, at least one other principal had expressed “major concerns” about her teaching.  When asked if she had communication problems with Peterkin, she only replied, “Well, he’s a friendly person, but he seems to be busy.”  When asked, “isn’t it true that over the past two-and-a-half years Mr. Peterkin and others have provided you with either remediation plans or improvement plans designed to help you improve your teaching,” Calhoun responded “Yes. But the suggestions that they were making that I should attend to, I felt I was doing that thoroughly.”  The thrust of the evidence offered by Calhoun was that she was properly responding to the remediation efforts.

The Board decided not to renew Calhoun’s teaching contract for the 2002-2003 school year, thereby adopting the superintendent’s recommendation.  She appealed the decision of the Board to the circuit court, which affirmed.  This appeal follows.

STANDARD OF REVIEW

“The scope of review that applies to cases brought under the Teacher Employment and Dismissal Act is limited to whether the grounds given for termination of employment are supported by substantial evidence.”  Hendrickson v. Spartanburg County Sch. Dist., 307 S.C. 108, 110, 413 S.E.2d 871, 872-73 (Ct. App. 1992).    “Substantial evidence is not a mere scintilla of evidence nor the evidence viewed blindly from one side of the case, but is evidence which, considering the record as a whole would allow reasonable minds to reach the conclusion the administrative agency must have reached in order to justify its action.”   Id., 307 S.C. at 110-11, 413 S.E.2d at 873.

DISCUSSION

I.

Calhoun first argues that the Board failed to enforce her legal right to receive written notice of perceived deficiencies and an opportunity to improve.  We disagree.

South Carolina Teacher Employment and Dismissal Act (the Act) governs the employment and dismissal of all continuing contract teachers in the South Carolina public school system.  Among other things, it empowers school boards to employ teachers and to discharge them “when good and sufficient reasons for doing so present themselves.”  S.C. Code Ann. § 59-19-90(2) (1976).  Here, Calhoun was terminated pursuant to two portions of the Act.  The first provides:

[a]ny teacher may be dismissed at any time who shall fail, or who may be incompetent, to give instruction in accordance with the directions of the superintendent, or who shall otherwise manifest an evident unfitness for teaching; provided, however, that notice and an opportunity shall be afforded for a hearing prior to any dismissal. Evident unfitness for teaching is manifested by conduct such as, but not limited to, the following: persistent neglect of duty, willful violation of rules and regulations of district board of trustees ….

S.C. Code Ann. § 59-25-430 (1976) (emphasis removed).  The second part of the Act upon which the Board based its termination provides:

[w]henever a superior, principal,  or supervisor charged with the supervision of a teacher finds it necessary to admonish a teacher for a reason that he believes may lead to, or be cited as a reason for, dismissal or cause the teacher not to be reemployed he shall: (1) bring the matter in writing to the attention of the teacher involved and make a reasonable effort to assist the teacher to correct whatever appears to be the cause of potential dismissal or failure to be reemployed and, (2) except as provided in § 59-25-450 [2] , allow reasonable time for improvement.

S.C. Code Ann. § 59-25-440 (1976) (emphasis added).

In the present case, Calhoun received numerous written and oral warnings over nearly a three-year period, beginning in the fall of 1999.  By her own admission, Peterkin provided Calhoun a written notice of his concerns about her teaching performance and parent complaints as early as January 2000.  Furthermore, Calhoun does not dispute that for a two-and-one-half year period preceding the Board’s decision not to renew her contract, Peterkin and others provided her “with either remediation plans or improvement plans designed to help … improve [her] teaching.” Rather, she expressed a belief that she was “thoroughly” addressing their suggestions.  In essence, she offers no indication that, given more time to improve, she would alter her performance in any way.  We find that sufficient evidence exists to establish that Calhoun received sufficient written notice of alleged deficiencies with her performance, more than reasonable assistance by MCHS to help her correct the alleged deficiencies, and a reasonable amount of time to demonstrate improvement in the areas of alleged deficiencies.

II.

Calhoun next argues that the Act gives rise to a fiduciary duty that the Board breached by allowing her to be evaluated by an allegedly “flawed process.”  We acknowledge – as does the District – that a school board owes a general duty of good faith and fair dealing consistent with the procedures and mandates of the Act.  We, however, need not reach the question of whether the Act creates a separate and independent fiduciary duty, for Calhoun has failed in any event to establish a breach of any such duty. [3]

One alleged flaw in the evaluation process, according to Calhoun, is that past comments allegedly made by S.T.E.P. evaluator Baker suggested her “bias” against Calhoun.  However, Calhoun offers no evidence of actual bias on Baker’s part.  We thus find no merit to this argument.  See Green v. Clarendon County School Dist. Three, 923 F.Supp. 829, 846 (D.S.C. 1996)(stating that the “nebulous concept of a ‘probability’ of unfairness[] is not sufficient proof of actual bias”).

The second alleged flaw stems from evaluator Black’s testimony that she had “secret” concerns about Calhoun’s performance that were not reflected on Calhoun’s 2000-2001 evaluation.  Calhoun contends this violated the Act’s requirement that she receive written notice and remediation.  We have, however, determined, as noted above, that Calhoun otherwise received sufficient notice, remediation guidance, and time to demonstrate improvement over a two-and-one-half year period prior to the decision of the Board not to renew her contract.  A review of the record demonstrates that the ultimate decision of the Board was based on the cumulative effect of all facts and circumstances surrounding Calhoun’s persistent pattern of noncompliance with the remediation plans.  There was no substantial reliance on the so-called “secret” concerns of Black.  We find no “breach” of the Act or purported fiduciary duty. 

III.

Calhoun contends the District failed to prove its case before the Board because the District relied, in part, on hearsay evidence of parent and student complaints regarding her teaching performance.  In doing so, Calhoun argues the Board, in allowing such testimony, violated her Constitutional rights.  We disagree.

It is well established that school board hearings under the Act are “quasi-judicial” administrative hearings.  See e.g., Laws v. Richland County School Dist. No. 1, 270 S.C. 492, 243 S.E.2d 192 (1978).  The rules of evidence do not strictly apply to teacher dismissal hearings.  Richards v. City of Columbia, 227 S.C. 538, 552, 88 S.E.2d 683, 689 (1955) (“[E]ven without the aid of statute it is held that an administrative or quasi-judicial body is not governed by the ordinary legal rules of evidence”);  Jacoby v. S.C. State Bd. Of Naturopathic Examiners, 219 S.C. 66, 90, 64 S.E.2d 138, 149 (1951) (“An administrative or quasi judicial body is allowed a wide latitude of procedure and not restricted to the strict rule of evidence adhered to in a judicial court.”).  Thus, we find no error in the admission of hearsay evidence regarding parent and teacher complaints. [4]  

IV.

Finally, Calhoun argues that the Board failed to objectively determine if “good and just cause” had been proven to support the Board’s decision not to renew her employment contract.  Calhoun maintains that the Board refused “to view the record in its entirety” and disregarded testimony favorable to Calhoun provided by one of Calhoun’s fellow faculty members, two of Calhoun’s former students, and Calhoun’s sister.  Calhoun essentially urges us to discredit the evidence relied upon by the Board.

The ultimate inquiry is whether substantial evidence supports the Board’s decision.  We find substantial evidence in the record to support the Board’s decision to terminate Calhoun.  We emphasize that our limited standard of review precludes fact-finding on our part.  Having concluded that the Board’s decision is supported by substantial evidence, we are constrained to affirm.   In so holding, we in no way diminish Dr. Calhoun’s lengthy and laudable career in public education.

AFFIRMED.

HEARN, C.J., HUFF and KITTREDGE, JJ., concur.


[1]    S.T.E.P. was a formal teacher evaluation process used by District at the time. 

[2]    Section 59-25-450 provides for the “immediate suspension” of teachers in limited circumstances.  S.C. Code Ann. § 59-25-450 (1976).

[3]    Calhoun cites Armstrong v. Sch. Dist. Five of Lexington County Richland Counties, 26 F.Supp.2d. 789 (D.S.C. 1998) for the proposition that “school districts serve in a fiduciary capacity in matters related to teacher rights and benefits.”  We find Armstrong inapposite, for the imposition of a fiduciary duty there concerned only the administration by the school district of accrued employee benefits

[4]     Even assuming that the admission of hearsay evidence was erroneous, we find the error not prejudicial to Calhoun in light of the non-hearsay evidence supporting the Board’s decision not to renew Calhoun’s contract.