Steve Gaylord appeals from the district court's ruling
affirming the termination of his teaching contract pursuant to
K.S.A. 72-5436 et seq. by the Board of Education, Unified
School District No. 218, Morton County, Kansas (Board). Gaylord
argues that there was not substantial evidence to support the
finding of insubordination and that the Board's decision to
terminate the contract was, therefore, arbitrary and capricious.
In April 1987, the Board voted to renew Gaylord's teaching
contract for the 1987-88 school year. Gaylord decided to explore
employment opportunities elsewhere and scheduled a job interview
in Bovina, Texas, for May 21, 1987. Gaylord requested personal
leave for that day, which fell during the last week of the school
year. Principal Steve Barnes denied the request pursuant to the
negotiated agreement, which forbade teacher absences the first or
last week of any semester. Barnes told Gaylord that
Superintendent Kenneth Fowler was the only one who could grant
personal leave during that time period. Fowler also denied
Gaylord's wife called Barnes on the morning of May 21 and
reported Gaylord was ill and would not be at work. Later that
day, Fowler received a call from the high school principal in
Bovina soliciting a recommendation for Gaylord. From that
conversation, Fowler learned Gaylord had been in Bovina that
The following day, Gaylord completed a sick leave form and
attached a note from his physician. Fowler called Gaylord to his
office, told him he knew about the Texas interview, requested his
keys, and told him to leave school property. Gaylord was later
notified of the Board's intent to terminate his contract. The
reasons given for the Board's action were insubordination,
failure to follow Board policy, and abusive treatment of
A due process hearing was conducted, and the panel determined,
by a two to one vote, that there was just cause to terminate
Gaylord's contract on a finding of insubordination based on the
May 21, 1987, absence. The hearing panel unanimously concluded
there was insufficient evidence of failure to follow
Board policy and insufficient evidence of abusive treatment of
students to warrant termination.
Following the statutory mandate to review less than unanimous
decisions of a hearing panel, the Board considered the opinion
and voted to terminate Gaylord's teaching contract. Gaylord
timely perfected his appeal to the district court. The district
court affirmed the Board's decision.
On review of a Board's decision, "[t]he district court may not
hear the case de novo, but is limited to deciding whether: (1)
The Board's decision was within the scope of its authority; (2)
its decision was substantially supported by the evidence; and (3)
it did not act fraudulently, arbitrarily, or capriciously."
Butler v. U.S.D. No. 440, 244 Kan. 458, 463, 769 P.2d 651
(1989). We are subject to the same limitations of review as the
district court. 244 Kan. at 464.
In order to terminate a tenured teacher, a board of education
must follow the procedures set out in K.S.A. 72-5436 et seq.
Bauer v. U.S.D. No. 452, 244 Kan. 6
, 9, 765 P.2d 1129 (1988).
K.S.A. 72-5443 provides in relevant part:
"(b) If the members of the hearing committee are
unanimous in their opinion, the board shall adopt the
opinion as its decision in the matter and such
decision shall be final, subject to appeal to the
district court as provided in K.S.A. 60-2101, and
"(c) If the members of the hearing committee are
not unanimous in their opinion, the board shall
consider the opinion, hear oral arguments or receive
written briefs from the teacher and a representative
of the board, and decide whether the contract of the
teacher shall be renewed or terminated."
Under the facts of this case, since the hearing committee
members were unanimous in their opinion on the charge of failure
to follow Board policy and on the charge of abusive treatment of
students, the Board was required to adopt the committee's opinion
and was precluded from considering any evidence as to those
issues. K.S.A. 72-5443(b). Considering the committee was not
unanimous on the insubordination charge, the Board was required
under K.S.A. 72-5443(c) to consider the opinion and decide
whether Gaylord's contract should be terminated.
The hearing committee based its recommendation of termination
for insubordination on the May 21 absence. Under the statute, the
Board should only have considered the hearing committee's
opinion on that issue and rendered its decision on the same.
Although the Board may have expanded its reach, the district
court only considered the evidence on the issue of
insubordination based on the May 21, 1987, incident. As the
district court stated:
"Pursuant to K.S.A. 72-5443, when more than one
reason is given for nonrenewal or termination of a
teacher's contract, and the hearing committee is
unanimous on one [or] more reasons but not unanimous
on one or more reasons the board of education is
required to adopt the unanimous portions of the
committee's decision and may make its own decision on
the nonunanimous portions."
The only issue to be considered for review by this court is the
charge of insubordination. There is no contention that the Board
acted outside the scope of its authority but only whether there
was substantial evidence to support its finding.
"Substantial evidence is evidence which possesses
both relevance and substance and which furnishes a
substantial basis of fact from which the issues can
reasonably be resolved. [Citation omitted.] Stated in
another way. `substantial evidence' is such legal and
relevant evidence as a reasonable person might accept
as being sufficient to support a conclusion."
Williams Telecommunications Co. v. Gragg,
242 Kan. 675, 676, 750 P.2d 398 (1988).
Insubordination is defined as "disobedience to constituted
authority. Refusal to obey some order which a superior officer is
entitled to give and have obeyed. Term imports a wilful or
intentional disregard of the lawful and reasonable instructions
of the employer." Black's Law Dictionary 720 (5th ed. rev. 1979).
In Leaming v. U.S.D. No. 214, 242 Kan. 743, 750 P.2d 1041
(1988), the plaintiff teacher willfully disobeyed the directions
of his superintendent and attended a science fair. Leaming
admitted he had signed a contract which required him to obey
rules and regulations of the board of education and the
directions of the superintendent and that he had defied those
directions. By absenting himself and by willfully disobeying ...