This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-99-1839

 

In the Matter of the Proposed Discharge of

Bradley J. Stroup,

Relator,

 

vs.

 

Independent School District No. 152,

Moorhead, Minnesota,

Respondent.

 

Filed August 22, 2000

Affirmed

Shumaker, Judge

 

Independent School District No. 152

 

Richard Henderson, Joel M. Fremstad, Nilles, Hansen & Davies, Ltd., 201 North Fifth Street, P.O. Box 2626, Fargo, ND 58108 (for relator)

 

James E. Knutson, Michelle D. Kenney, Knutson, Flynn, Deans & Olsen, 1155 Centre Pointe Drive, Suite 10, Mendota Heights, MN 55120 (for respondent)

 

Considered and decided by Shumaker, Presiding Judge, Toussaint, Chief Judge, and Schumacher, Judge.

U N P U B L I S H E D†† O P I N I O N

 

SHUMAKER, Judge

 

††††††††††† Relator Bradley J. Stroup challenges his discharge as a teacher for respondent Independent School District No. 152.† Because there is substantial evidence that relator engaged in insubordination or conduct unbecoming a teacher, we affirm.

FACTS

††††††††††† Relator Bradley J. Stroup was a high school teacher employed by respondent Independent School District No. 152 in Moorhead.† In July, 1996, another teacher in the district complained of Stroupís conduct toward her.† The district investigated, interviewing other teachers, staff members, and current and former students.

††††††††††† On February 24, 1997, the district gave Stroup a ďNotice of Deficiency,Ē citing several instances of ďconduct unbecoming a teacher.Ē† The notice directed Stroup to cease all inappropriate behavior and to correct the deficiencies.† The notice also stated:

You are further directed not to retaliate in any way against any of the persons referred to in this notice of deficiency  * * *† Should you fail to correct these deficiencies or retaliate in any way you will be subject to termination or discharge.

 

Stroup filed a grievance, challenging the Notice of Deficiency.† After a hearing on the grievance, a hearing officer determined that most of the deficiencies stated in the Notice of Deficiency were ďnot false or substantially inaccurate.Ē† The officer expunged those he found ďsubstantially inaccurate,Ē denied Stroupís grievance, and determined the length of Stroupís remedial period:

The specific time period in which to remedy the alleged conduct is determined to be two years from February 24, 1997.† The same time period holds true within which the alleged misconduct can be used as a basis to terminate his continuing contract to teach.

 

The school district adopted the hearing officerís decision.† Stroup continued to teach without further complaint until November and December 1998.

††††††††††† On October 23, 1998, prior to the expiration of the remedial period, Stroup filed ethics complaints with the board of teaching against four of the teachers who provided information that resulted in the Notice of Deficiency.† In November and December 1998, these teachers complained to the school district that, by filing the ethics complaints, Stroup was retaliating against them in violation of the school districtís directive that he not do so.

††††††††††† In his ethics complaint, Stroup did not provide factual details, but rather listed three provisions of the Teacherís Code of Ethics that he believed the teachers had violated.† He indicated that he would provide proof at the boardís request.

††††††††††† An assistant attorney general representing the board of teaching requested detailed facts supporting Stroupís allegations.† Stroup responded by referring to the interviews of the teachers during the school districtís investigation and alleging that the teachers had lied about him and had wrongly accused him of misconduct.† He gave no factual details.

††††††††††† An investigator from the attorney generalís office then asked Stroup to

provide specific and detailed facts which tie the individuals who are the subjects of your complaint to the Board of Teaching with the statements found to be substantially inaccurate.

 

Stroup then asked that the investigation be put on hold until other legal issues had been resolved.

††††††††††† On March 23, 1999, the school district notified Stroup that the school board had voted to discharge him immediately for violating the proscription against retaliation in the Notice of Deficiency.† Stroup requested a hearing.† It was held on July 22, 1999.

††††††††††† Stroup testified that the statements of the teachers during the school districtís investigation were inaccurate or false.† He commented specifically on each of the statements and allegations and provided his version.† The hearing officer concluded that there was ďsubstantial and competent evidence in the record that Stroup retaliatedĒ against the four teachers, and that Stroupís conduct was not remediable.† On September 13, 1999, the school board discharged Stroup.† He appealed, contending that the school districtís decision was not supported by substantial evidence, was legally erroneous, and was unfair.

D E C I S I O N

††††††††††† A school district acts in an administrative capacity when it makes personnel decisions.† Beste v. Independent Sch. Dist. No. 697, 398 N.W.2d 58, 60 (Minn. App. 1986).† This courtís standard of review of school district decisions is narrow, and we will reverse a decision to discharge a teacher only if that decision was fraudulent, arbitrary, unreasonable, not supported by substantial evidence, outside the school districtís jurisdiction, or based on an erroneous application of the law.† Ganyo v. Independent Sch. Dist. No. 832, 311 N.W.2d 497, 500 (Minn. 1981).

††††††††††† The school district adopted the hearing officerís conclusions that Stroup engaged in conduct unbecoming a teacher by violating the proscription against retaliation and that Stroupís conduct was not remediable.† We hold that the conclusions were not fraudulent, arbitrary, or unreasonable and were supported by substantial evidence.

††††††††††† For a period of two years, Stroup was to refrain from any retaliation against any of the teachers who gave information in the school districtís investigation of a complaint against Stroup.† Before the expiration of that period, Stroup filed an ethics complaint against four of those teachers.

††††††††††† The four teachers gave subpoenaed testimony during the investigation.† In his ethics complaint Stroup accused them of disclosing confidential information, making false or malicious statements about him, and failing to accord just and equitable treatment to him, all in violation of three separate provisions of the Teacherís Code of Ethics.† The hearing officer concluded that one of the provisions was not part of the ethics code and, therefore, neither the officer nor the school district had jurisdiction to consider an alleged violation of that provision.† Stroup admitted that none of the four teachers violated the provision prohibiting disclosure of confidential information.† Thus, two of Stroupís three ethics complaints were improperly made against the four teachers.

††††††††††† The remaining complaint was that the teachers made false and malicious statements about him.† Stroup testified and gave his own version as to each of the allegedly false or malicious statements.† The hearing officer concluded that Stroup failed to show that any of the teachersí statements was false and that Stroup himself gave false testimony as to some of the statements.† Where there are conflicts in the evidence, we must defer to the hearing officer in credibility determinations.† Minn. R. Civ. P. 52.01.† The hearing officer rejected Stroupís allegations as being unsubstantiated and his testimony as being inaccurate and false.† Substantial evidence in the record supports the hearing officerís conclusions.

††††††††††† The hearing officer concluded that Stroupís improper and unsubstantiated ethics complaints were made in bad faith and in retaliation against the teachers, constituting insubordination or conduct unbecoming a teacher.† The hearing officer did not err in determining that Stroupís violation of the school districtís directive not to retaliate was a sufficient ground for his discharge.† See Minn. Stat. ß 122A.40, subd. 9(c) (1998) (a teacherís contract may be terminated for conduct unbecoming a teacher); Minn. Stat. ß 122A.40, subd. 13(a) (1998) (a teacher may be immediately discharged for insubordination).

††††††††††† Stroup next contends that the hearing officer erred in concluding that his conduct was not remediable.† In determining whether conduct is remediable the school district must consider the teacherís record as a whole, the severity of his conduct, the actual impact the teacherís conduct might have on his students, the damage done, and whether the damage could have been controlled had the teacher been warned.† Kroll v. Independent Sch. Dist. No. 593, 304 N.W.2d 338, 345-46 (Minn. 1981).

††††††††††† Several teachers and others substantiated findings that Stroup had engaged in multiple instances of inappropriate conduct.† The school district gave clear warning that he was not to repeat the inappropriate behavior and that he was not to retaliate against the teachers who testified.† Although Stroup did not repeat the inappropriate conduct, he did retaliate in disregard of the school districtís directive.† He filed unfounded ethics complaints, failed to support them with evidence, and testified falsely in an effort to support his allegations.† He also requested that the teachersí licenses be revoked.† Stroupís intentional, spiteful, insubordinate conduct was of a type that likely would impair teacher morale, damage reputations, dissuade personnel from disclosing instances of inappropriate teacher conduct, and have a lasting deleterious effect on the atmosphere of the educational institution.† We hold that the hearing officer did not err in determining that Stroupís conduct was not remediable.

††††††††††† Stroup also alleges that the school district exceeded its jurisdiction because the discharge occurred after the expiration of the two-year remedial period.† Stroupís retaliation occurred well within the period of proscription.† There is no merit to his allegation that the district could not act after that period ended.

††††††††††† Finally, Stroup argues that the proceedings were unfair because the school districtís lawyer conducted the initial investigation, drafted legal documents, and represented the district throughout the proceedings.† Stroup did not raise this issue below, and we are not required to address it on appeal.† See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (this court generally will not consider matters that were not argued and considered in proceedings below).† However, we note that all procedures appear to have been conducted properly and fairly and that two independent hearing officers made the determinations that supported Stroupís discharge.

††††††††††† Affirmed.