This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Gail F. Spiss,



Independent School District No. 138,

North Branch, Minnesota,


Filed January 23, 1998


Willis, Judge

Independent School District No. 138

Philip G. Villaume, Margaret K. Ackerman, Philip G. Villaume & Associates, 7900 International Drive, Suite 675, Bloomington, MN 55435 (for relator)

Marie C. Skinner, Jennifer K. Anderson, Knutson, Flynn, Deans & Olsen, P.A., 1900 Minnesota World Trade Center, 30 East 7th Street, St. Paul, MN 55101 (for respondent)

Considered and decided by Lansing, Presiding Judge, Huspeni, Judge, and Willis, Judge.



Relator Gail Spiss challenges by writ of certiorari respondent school district's decision to terminate her employment for cause. We affirm.


Respondent Independent School District No. 138 hired relator Gail Spiss as a probationary middle school assistant principal for the 1996-97 school year. On October 30, 1996, relator found two fifth-grade students, K.P. and K.R., pushing one another in the hallway. The children testified that relator grabbed K.P. by her right arm and told her to "get [her] f---ing butt down to the office." K.R. testified that she heard relator tell K.P. to "get [her] f---ing ass to the office." Relator then grabbed K.R. by the arm, swung her around, and told her to "get [her] f---ing ass to the office too." After the incident, K.P. had bruises on her arm and muscle soreness, nightmares, and would not get up in the morning to attend school. Several students corroborated K.P. and K.R.'s version of the event. Children and teachers also reported other physical and verbal altercations between relator and students.

Teacher Vickie Reisnouer testified that during a conference among relator, Reisnouer, a student, and the student's mother, relator interrupted the mother each time she started to talk and treated her in a disrespectful and demeaning manner. Reisnouer also testified that when relator attended the middle school open house, she approached Reisnouer and commented on a student's "atrocious behavior" and "attitude" in a loud voice and mentioned the child's name twice during the conversation while parents of other students were in the room.

Middle school counselor Lora O'Hern testified that relator often revealed confidential information about students in the office reception area or to the secretaries. Relator also met with students and left her office door open so that anyone in the area could hear the student's discipline issues. On one occasion while O'Hern was meeting with a parent and student about the student's schedule in relator's office, relator entered her office and told the student, "Don't you know all you have to do is suck up * * * ."

On November 11, 1996, respondent school district's counsel, Anne Krisnik, advised relator that the school board was suspending her without pay pending the completion of an investigation of her behavior. On November 18, 1996, Superintendent James Walker and Krisnik met with relator and her attorney. Walker gave relator two options: (1) to resign, in which event, Walker would recommend to the board that it pay her for unused sick leave; (2) to return to the school without any supervisory duties outside of her office, including limited interaction with students, staff, and parents, and receive a written reprimand. Walker also told relator that if she were to resign her position they could perhaps negotiate the language of a recommendation. Walker testified that, no matter which option relator elected, he would recommend to the board that they should not renew her contract for the following school year.

On November 21, 1996, relator sent to Walker by facsimile a letter stating that she had decided to accept the second option, that is to return to the school as assistant principal with restricted duties. Relator's attorney had informed the school district's attorney after the November 18 meeting that relator would accept the second option, but would grieve the reprimand. Walker testified that he did not, therefore, understand relator to have accepted either of the options because she had not accepted without qualification. Relator testified at the hearing that she did not know that her attorney had notified the district that she intended to grieve any disciplinary letter.

The board, acting on behalf of respondent school district, adopted a resolution proposing to terminate relator's employment for cause and notified relator by a notice of proposed termination dated November 26, 1996. The notice asserted the following reasons for discharge: (1) unacceptable verbal interactions with students, staff, and parents; (2) "escalating situations" with students; (3) treating students, staff, and parents in a disrespectful, demeaning, or threatening manner; (4) failing to respect the confidentiality rights of students; and (5) unacceptable physical interaction with students. The board appointed Steven Rutzick as hearing officer for a hearing on January 13-16, 18, and 21, 1997. Relator requested an arbitration hearing, but the Bureau of Mediation Services and Rutzick denied the request.

The hearing officer issued his proposed findings of fact and conclusions of law and recommended that the school board terminate relator's contract and employment rights immediately. The officer made 72 findings of fact regarding the incidents involving relator, students, and staff and concluded that her conduct was cause for termination because it resulted in actual and substantial harm to students. The school board adopted the hearing officer's findings, conclusions, and recommendation and discharged relator on behalf of respondent school district on March 27, 1997. Relator challenges the board's decision by writ of certiorari.


On appeal from a school board's employment decision, we will reverse or modify the board's decision if it is unsupported by substantial evidence, arbitrary, unreasonable, or based on an error of law. Dokmo v. Independent Sch. Dist. No. 11, 459 N.W.2d 671, 675 (Minn. 1990). We give great deference to the "factfinding processes of a school board acting in an administrative capacity" in deciding whether to terminate a teacher. Whaley v. Anoka-Hennepin Indep. Sch. Dist. No. 11, 325 N.W.2d 128, 130-31 (Minn. 1982). A reviewing court may not substitute its judgment for that of a school board. Ganyo v. Independent Sch. Dist. No. 832, 311 N.W.2d 497, 500 (Minn. 1981).

1. Substantiality of Evidence

Relator argues that several of the hearing officer's findings adopted by the school board fail to meet the substantial-evidence test. Even if there is record evidence from which we could draw conflicting inferences, we will affirm a school board's inferences if they are supported by substantial evidence in the record as a whole. Whaley, 325 N.W.2d at 131. This court must "defer to the opportunity of the hearing examiner * * * to judge first hand the credibility of witnesses." Downie v. Independent Sch. Dist. No. 141, 367 N.W.2d 913, 916 (Minn. App. 1985), review denied (Minn. July 26, 1985). "Substantial evidence is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Wagner v. Minneapolis Pub. Schs., Special Sch. Dist. No. 1, 569 N.W.2d 529, 532 (Minn. 1997) (quoting Reserve Mining Co. v. Herbst, 256 N.W.2d 808, 825 (Minn. 1977)).

Relator argues in essence that the hearing officer found her testimony to be not credible and the testimony of the rest of the witnesses to be credible. In her brief, relator iterates her version of the events involving her and the various students, claiming that her version does not support the hearing officer's findings. The school board based its decision on the hearing officer's 72 findings of fact. The hearing officer was in a position to make credibility determinations, and he wrote a three-page memorandum explaining why he believed the students and other witnesses and disbelieved relator. Relator questions the credibility of other witnesses' testimony, cites her own testimony in rebuttal, and gives examples of her prior good acts. That does not negate the abundant evidence supporting the school board's conclusion that relator's conduct is cause for dismissal. We conclude that substantial evidence supports the hearing officer's findings, which were adopted by the school board.

2. Arbitrary and Unreasonable Decision

Relator argues that the school board's decision to terminate her employment on behalf of respondent school district was arbitrary and unreasonable because her punishment was more severe than that given other school employees who committed the same acts. See State ex rel. Laux v. Gallagher, 527 N.W.2d 158, 162-64 (Minn. App. 1995) (affirming veterans preference board's modification of police officer's discharge to 90-day suspension based, in part, on fact that police department did not discharge other employees for similar conduct). But relator only describes isolated incidents involving other teachers who allegedly grabbed students, raised their voices, verbally abused students, or escorted or moved students by the arm. There is no evidence that any other staff member had a comparable number of similar incidents of misconduct.

Relator argues that the school board discharged her because her disciplinary style did not "fit in" with the style at the school and that the board decided to terminate her before the hearing and therefore its actions were arbitrary and unreasonable. A school board must base its decision to terminate a teacher's contract on reliable evidence having probative value and relevance to establish alleged facts. Morey v. School Bd. of Indep. Sch. Dist. No. 492, 276 Minn. 48, 50-51, 148 N.W.2d 370, 371-72 (1967). There is nothing in the record to suggest that the board terminated relator's employment because of a "[d]ifference in style and personality" or that the board had made a decision to terminate relator before the hearing. The board afforded relator a six-day hearing and adopted the hearing officer's extensive findings regarding relator's conduct.

We conclude that the termination of relator's employment was not arbitrary or unreasonable.

3. Errors of Law

a. Superintendent's authority to reinstate relator

Relator argues that the court erred in finding that respondent school district's superintendent did not have the authority to modify relator's employment rights. Transferring a teacher to a position of equal rank and pay is usually within the sound discretion of a school district superintendent. Johnson v. Independent Sch. Dist. No. 281, 494 N.W.2d 270, 274 (Minn. 1992) (citing Henderson v. City of St. Paul, 236 Minn. 353, 359, 53 N.W.2d 21, 25 (1952)). But Walker did not offer to transfer relator to a position of equal rank and pay. The record shows that Walker offered to recommend to the school board that relator have the option of returning to her job with severely restricted duties--including limited interaction with students, staff, and parents--and that she receive a written reprimand. Walker also told relator that in any event, he would recommend to the board that they not renew her contract for the following school year. We conclude that Walker did not offer relator a position of equal rank because she would no longer have the duties of an assistant principal.

Alternatively, relator contends that Walker acted on behalf of the board as its agent. "[A]gency is a legal concept which the law imputes to the factual relation between the parties." PMH Properties v. Nichols, 263 N.W.2d 799, 802 (Minn. 1978). "Whether an agency relationship exists is a question of fact * * *." Church of the Nativity of Our Lord v. WatPro, Inc., 491 N.W.2d 1, 6 (Minn. 1992). We will not substitute our judgment for that of the school board if the board's findings are properly supported by the evidence. Whaley, 325 N.W.2d at 130.

An agency relationship is "the fiduciary relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act."

Church of the Nativity, 491 N.W.2d at 5-6 (quoting Restatement (Second) of Agency § 1 (1958)). Proof of an agency relationship rests with the will of the principal, rather than the acts of the alleged agent. Mikulay v. Home Indem. Co., 449 N.W.2d 464, 467 (Minn. App. 1989), review denied (Minn. Feb. 21, 1990). If persuasive evidence to establish the elements of an agency relationship does not exist, there is no agency as a matter of law. Jurek v. Thompson, 308 Minn. 191, 200-01, 241 N.W.2d 788, 793 (1976).

"Apparent authority is that authority which a principal holds an agent out as possessing, or knowingly permits an agent to assume." Foley v. Allard, 427 N.W.2d 647, 652 (Minn. 1988). To have apparent authority in an agency relationship,

[t]he principal must have held the agent out as having authority, or must have knowingly permitted the agent to act on its behalf; furthermore, the party dealing with the agent must have actual knowledge that the agent was held out by the principal as having such authority or had been permitted by the principal to act on its behalf; and the proof of the agent's apparent authority must be found in the conduct of the principal, not the agent.

Hockemeyer v. Pooler, 268 Minn. 551, 562, 130 N.W.2d 367, 375 (1964).

Relator argues that Walker, as superintendent, had the authority to offer her a settlement agreement on behalf of the school board as its apparent agent. But relator testified that she knew Walker could not change the terms of her employment without the school board's approval. By relator's own admission, therefore, the board had not held Walker out as having the authority to act on its behalf, and relator knew that he did not have that authority. Because Walker did not offer relator a position of equal rank and Walker did not have the apparent authority to act on behalf of the school board, the hearing officer's implicit finding that Walker could not bind the school board in a settlement agreement with relator is supported by the evidence. We therefore need not address relator's arguments regarding whether she effectively communicated to Walker acceptance of an offer to continue as an assistant principal.

b. Equal protection violation

Relator contends that because, as a probationary teacher, she was not afforded the opportunity to arbitrate her claim, she was denied equal protection of the laws. An independent school district school board has the right to discharge teachers for cause. Minn. Stat. § 123.35, subd. 5 (1996). The first three consecutive years of a teacher's employment are a probationary period. Minn. Stat. §§ 125.12, subd. 3; 125.17, subd. 2 (1996). Any teacher who has completed the probationary period has the right to request an arbitration hearing in the event that the school board serves the teacher with notice of intent to discharge for cause. Minn. Stat. §§ 125.12, subd. 4; 125.17, subd. 10a.

Under the Equal Protection Clause, "[n]o state shall * * * deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The Equal Protection Clause requires that all persons similarly situated be treated alike under the law. In re Harhut, 385 N.W.2d 305, 310 (Minn. 1986).

The school district argues that this court should not consider this issue because relator did not raise it below. "But this court, whether or not the school board addressed the issue, would determine [a] constitutional challenge in a certiorari appeal." Clark v. Independent Sch. Dist. No. 834, 553 N.W.2d 443, 445 (Minn. App. 1996). The school district also argues that relator's argument is not properly before this court because she failed to advise the attorney general, in accordance with Minn. R. Civ. App. P. 144, of her challenge to the constitutionality of the statutes. But the record shows that relator notified the attorney general of her challenge and that the attorney general acknowledged the challenge, but declined to intervene. The issue is, therefore, properly before us.

Relator contends that probationary teachers are similarly situated to teachers who have completed their probationary period. Teachers who have completed their probationary period have an interest in continued employment that is subject to due process safeguards. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 576-77, 92 S. Ct. 2701, 2709 (1972). Similarly, recently hired teachers who have not completed their probationary period may also have a due process interest in a hearing before termination if there is a clearly implied promise of continued employment. Id.

In Roth, the supreme court held that the terms of respondent's appointment created and defined his continued property interest in his employment at a state university. Id. at 578, 92 S. Ct. at 2709. But the terms of his contract only secured his employment for the time period specified in the contract, which contained no provision for renewal. Id. Likewise, relator's contract specifically provide that her employment was only for the 1996-97 school year. There is no provision in relator's contract for renewal. For this reason, as in Roth, the terms of relator's appointment "supported absolutely no possible claim of entitlement to re-employment." Id., 92 S. Ct. at 2710. Relator may have an "abstract concern" in being rehired, but it is not enough to create a property right. See id. Furthermore, there are no state statutes or school district rules or policies that secure her interest in continued employment or that create a legitimate expectancy to it. See id. For these reasons, we conclude that relator is not similarly situated to nonprobationary teachers.

Relator also claims that she is denied equal protection because probationary teachers in cities of the first class are granted the right to arbitrate their disputes while probationary teachers in other cities are only given a right to a hearing.[1] Relator misconstrues Minn. Stat. § 125.17, subd. 10a, to make her argument.

Section 125.17, subdivision 10a, provides that "[a] teacher against whom charges have been filed alleging any cause for discharge * * * may elect a hearing before an arbitrator instead of the school board." Subdivision 2 of the same section provides that if a school board in a city of the first class elects to discharge a probationary teacher for cause, it may do so by giving the teacher

[a] written statement of the cause of such discharge * * * at least 30 days before such removal * * * shall become effective, and the teacher so notified shall have no right of appeal therefrom.

Minn. Stat. § 125.17, subd. 2 (1996). Subdivision 2 does not provide a probationary teacher with a right to a hearing before a for-cause termination and does not provide for arbitration.

"When a general provision in a law is in conflict with a special provision in the same or another law, the two shall be construed, if possible, so that effect may be given to both." Minn. Stat. § 645.26, subd. 1 (1996). Subdivision 2 is a special provision that applies only to probationary teachers; subdivision 10a applies to teachers generally. The two subdivisions can be harmonized by construing subdivision 10a to apply only to nonprobationary teachers, and we do so. Even if the conflict between the two provisions were irreconcilable, we would arrive at the same conclusion. See Minn. Stat. § 645.26, subd. 1 (1996) (providing that, in the case of an irreconcilable conflict between two provisions, "the special provision shall prevail and shall be construed as an exception to the general provision * * *."); see also Barton v. Moore, 558 N.W.2d 746, 752 (Minn. 1997). Subdivision 2, therefore, governs the for-cause termination of a probationary teacher in a city of the first class.

A school board in a city not of the first class that elects to discharge a probationary teacher for cause may do so "after a hearing held upon due notice * * * ." Minn. Stat. § 125.12, subd. 3. It is undisputed that relator was a probationary teacher in a city not of the first class. Unlike a probationary teacher in a city of the first class, relator had the right to a hearing before the school board and received one pursuant to Minn. Stat. § 125.12, subd. 3. To have standing to bring any claim, a litigant must establish an injury in fact or have a significant stake in the outcome of the case. Cochrane v. Tudor Oaks Condominium Project, 529 N.W.2d 429, 433 (Minn. App. 1995), review denied (Minn. May 31, 1995). Because relator received a hearing, she is not injured by the fact that probationary teachers in cities of the first class who are terminated for cause have no right either to arbitration or to a hearing and, therefore, she has no standing to bring an equal protection claim on that ground.

c. Due process

Relator argues that the hearing officer denied her procedural due process rights. Specifically, relator contends that respondent's counsel improperly acted as an investigator, prosecutor, and legal advisor in this matter. "The fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.'" Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 1191 (1965)).

This court has directly addressed relator's argument in Schmidt v. Independent Sch. Dist. No. 1, 349 N.W.2d 563 (Minn. App. 1984). In Schmidt, this court found that where counsel for the school district presents the case for discharging the appellant, advises the board chair on legal rulings, and drafts and presents the findings of facts and order terminating appellant, the teacher's right to a meaningful and impartial hearing is tainted. Id. at 568. But the court stated that hiring an independent hearing examiner should "alleviate the problem." Id.

Here, an independent hearing officer conducted relator's discharge hearing. The school district's attorney presented the case for discharging relator and drafted and presented findings of fact and an order to discharge relator to the hearing officer. But, unlike the school district counsel in Schmidt, she did not advise the hearing officer on legal rulings and did not make recommendations to the school board. We therefore conclude that the school district's attorney's involvement in relator's case did not deny her a fair and impartial hearing.

Relator also argues that the fact that the school district's attorney conducted an investigation into relator's conduct created a conflict of interest that should have prevented the attorney's participation in relator's hearing. Relator relies on a rule of professional conduct providing that if an attorney is likely to be a necessary witness, the attorney "shall not act as advocate at a trial." Minn. R. Prof. Conduct 3.7. But a violation of the Rules of Professional Conduct does not give rise to a private cause of action. Scope, Minn. R. Prof. Conduct. In any event, nothing in the record shows that the school district's attorney was a necessary witness, and relator did not attempt to call her as a witness.

Relator contends that because respondent did not provide her with a witness list before the hearing, she was deprived of procedural due process rights. Minnesota law establishes procedures designed to give teachers a fair hearing. Minn. Stat. § 125.12, subd. 9 (1996). But the statute provides no right to conduct discovery. In the absence of authorization by ordinance or statute, an administrative agency may not establish or adopt discovery procedures. See Waller v. Powers Dep't Store, 343 N.W.2d 655, 657-58 (Minn. 1984) (holding discovery order void because ordinance did not authorize civil rights commission to provide discovery procedures to participants in hearings). As an administrative agency, the school board is limited to the procedures described in Minn. Stat. § 125.12, subd. 9. The fact that respondent did not provide relator with a witness list, therefore, did not violate relator's procedural due process rights.

Relator argues that the hearing officer denied her procedural due process in removing her from the hearing while two child witnesses testified and in allowing the school's principal and the director of personnel and finance to sit through the entire hearing. An accused's constitutional right to confront witnesses against her applies only in criminal prosecutions. U.S. Const. amend. VI; Minn. Const. art. 1, § 6. This court has held that an agency hearing is not a criminal prosecution and, therefore, the subject of an agency hearing is not entitled to the same right to confront witnesses that exists in a criminal trial. Kichler v. Civil Service Comm'n of Saint Paul, 381 N.W.2d 48, 50 (Minn. App. 1986). On the same ground, relator had no right to request sequestration of witnesses. We conclude that the hearing officer did not err in allowing two child witnesses to testify out of relator's presence or in denying relator's request to sequester the school's principal and the director of personnel and finance.

d. Unfair labor practice

Relator contends the school board committed an unfair labor practice in terminating her employment on behalf of respondent school district because it believed she intended to grieve a written reprimand.[2] Under Minn. Stat. § 179A.13, subd. 1 (1996),

[a]ny employee * * * aggrieved by an unfair labor practice * * * may bring an action for injunctive relief and for damages caused by the unfair labor practice in the district court of the county in which the practice is alleged to have occurred. A copy of any complaint alleging an unfair labor practice must be filed with the commissioner [of the bureau of mediation services] at the time it is brought in district court.

There is no evidence that relator brought an action in the district court on this issue or that she filed a copy of a complaint with the commissioner of the bureau of mediation services. Because relator has met neither of these statutory requirements, we conclude that we do not have jurisdiction to review this issue.[3]

4. Timely Service of Notice of Discharge

Relator contends that the school board did not timely serve its notice of discharge. The construction of a statute is clearly a question of law and fully reviewable by this court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985). After a discharge hearing, the school board must

issue a written decision and order. If the board orders * * * discharge of a teacher, its decision shall include findings of fact based upon competent evidence in the record and shall be served on the teacher, accompanied by an order of * * * discharge, * * * within ten days after conclusion of the hearing * * * .

Minn. Stat. § 125.12, subd. 10 (1996). We have construed the "conclusion of the hearing" language in this statute to

apply to the meeting at which the board adopts its decision to discharge the teacher, rather than the date the case is concluded before the hearing examiner or the date the hearing examiner issues its Findings of Fact.

In re Discharge of Peterson, 472 N.W.2d 687, 691 (Minn. App. 1991). The school board adopted the hearing examiner's recommendation and passed a resolution discharging relator on behalf of respondent school district on March 27, 1997. The school board mailed a termination notice to relator on March 31, 1997, and relator received it on April 2, 1997, within the ten-day period prescribed by Minn. Stat. § 125.12, subd. 10.

Relator claims that the school board's service of the termination notice was ineffective because the statute contemplates personal service and the board served the notice of discharge by mail. The statute does not specify how service is to be made. See Minn. Stat. § 125.12, subd. 10. And the Minnesota Supreme Court has adopted a flexible approach in construing Minn. Stat. § 125.12, subd. 10. See Herfindahl v. Independent Sch. Dist. No. 126, 325 N.W.2d 36, 39 (Minn. 1982). The court there indicated that failure by the school board to comply strictly with the statute, if no prejudice results to the teacher, is not a violation of the statute if the school board attempts in good faith to comply. See id. (holding that where school board did not attach findings to notice of termination, board could do so later without prejudice to relator). Relator has not shown that service by mail is unauthorized, nor has she shown that it prejudiced her. We conclude that the school board complied with the statute when it served relator by mail with the notice of discharge.

5. Attorney Fees on Appeal

Relator contends that respondent school district has acted in bad faith and, therefore, she is entitled to an award of attorney fees for her appeal. A court may award attorney fees to a party if "the party or attorney against whom costs, disbursements, reasonable attorney and witness fees are charged acted in bad faith * * * ." Minn. Stat. § 549.21 (1996). Relator claims that respondent school district has lied to the court, manufactured evidence, mischaracterized evidence, ignored case law authority, and committed an unfair labor practice. But there is no evidence to support her claims. We do not award attorney fees to relator for her appeal.




Judge Bruce D. Willis

[ ]1 The legislature has classified cities of this state by population. State ex rel. Chase v. Babcock, 175 Minn. 103, 108, 220 N.W. 408, 410 (1928). A city of the first class is one with more than 100,000 inhabitants. Minn. Stat. § 410.01 (1996).

[ ] 2 Respondent argues that relator did not raise her unfair labor practices claim before the hearing officer, so this court should not consider it. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). But relator did raise the issue in her memorandum in support of reinstatement.

[ ] 3 Relator argues that a retaliation defense must be addressed by the fact-finder in a termination proceeding under Graham v. Special Sch. Dist. No. 1, 472 N.W.2d 114, 118 (Minn. 1991). But Graham dealt with Minn. Stat. § 181.932, subd. 1(a) (1996), which does not contain the same procedural requirements as sections 179A.13 and 179A.15. Graham, therefore, is inapposite.