#25683-a-DG

2011 S.D. 45

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                   * * * *

MATT ONNEN,                                    Appellant,

 v.

SIOUX FALLS INDEPENDENT
SCHOOL DISTRICT #49-5,                         Appellee.

                                   * * * *

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                   * * * *

                    HONORABLE WILLIAM J. SRSTKA, JR.
                                Judge

                                   * * * *

JOHN R. PEKAS
Sioux Falls, South Dakota
 and
ROLLYN H. SAMP of
Samp Law Firm
Sioux Falls, South Dakota                      Attorneys for appellant.

ANTHONY M. HOHN
SANDRA HOGLUND HANSON of
Davenport, Evans, Hurwitz
 & Smith, LLP
Sioux Falls, South Dakota                      Attorneys for appellee.

                                    * * * *
                                              ARGUED APRIL 26, 2011

                                              OPINION FILED 08/03/11
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GILBERTSON, Chief Justice.

[¶1.]        Matt Onnen was terminated from an administrative position at

Southeast Technical Institute (STI), an entity of the Sioux Falls School District. He

appealed the decision, arguing that it was arbitrary and capricious and an abuse of

discretion. The trial court, Judge William J. Srstka, Jr., affirmed the decision to

terminate. Onnen appeals Judge Srstka’s determination. Onnen also alleges that

Judge Srstka was biased in the proceedings and should have granted his motion for

a new trial. We affirm.

                                       FACTS

[¶2.]        Onnen began working for STI in 2003. In August 2005, he was hired

as STI’s registrar under a written contract. He continued his employment under

annual written contracts. As registrar, Onnen was responsible for ensuring

students met all the graduation requirements before receiving a degree.

[¶3.]        Onnen’s supervisor, Jim Rokusek, was informed in August 2007 that a

student had received a degree despite failing to meet all of the graduation

requirements. After investigation, Rokusek discovered that 12 additional students

had improperly received degrees and STI’s records incorrectly reflected that the

students were graduates. Thereafter, Rokusek met with Onnen and others to

discuss the degree errors. Onnen admitted he knew as early as June 2007 that six

or seven degrees had been sent out incorrectly and that he had personally issued

three of them. A work-study student sent out the other degrees while Onnen was

on annual leave. Onnen denied knowing of any other improperly conferred degrees.

Onnen said that he had called some of the students who received an improperly

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conferred degree to inform them they had not graduated, but he did not keep a list

of who he reached. Onnen admitted that he had not informed his superiors of the

errors. As a result, STI suspended Onnen for three days with pay so that STI could

conduct a more thorough investigation. Onnen was given a memorandum stating

that he had a right to prepare a written response to the suspension, which he did

not do.

[¶4.]        During Onnen’s suspension period, STI commenced an investigation to

determine the scope of degree errors and how to address the problem. STI officials

found that 15 more improperly conferred degrees or diplomas were approved and

awarded by Onnen the previous year, bringing the total to 28. They also discovered

40-50 students were entitled to a degree or diploma, but had not received one.

Finally, they found out that over 250 students had not been verified for graduation

at all, though the task should have been done months earlier.

[¶5.]        Personnel from STI met to discuss the investigation results. Due to

the magnitude of Onnen’s errors, his refusal to take responsibility for the errors,

and lack of effort to rectify the situation, they agreed Onnen should be terminated.

On August 30, 2007, Onnen was given a Notice of Termination of Employment,

effective immediately. The Notice outlined the investigation results and explained

the severity of the errors and negative effect they could have on STI and its

students. The Sioux Falls School Board (Board) affirmed the decision on September

10, 2007. On September 17, 2007, Onnen submitted a complaint to Sioux Falls

School District #49-5 (District) Superintendent Dr. Pamela Homan, alleging that he

had been wrongfully terminated. Onnen appealed the District’s and Board’s

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decision of termination to circuit court. He argued that the decision to terminate

him was arbitrary and capricious and in violation of public policy. He also argued

that the procedure utilized by the District in terminating him was illegal. After a

three-day trial, Judge Srstka affirmed the District.

[¶6.]        After trial, Onnen moved for a new trial and for Judge Srstka’s recusal

from hearing the motion for a new trial. Presiding Judge Kathleen Caldwell denied

Onnen’s motion for Judge Srstka’s recusal from hearing the new trial motion.

Ultimately, Judge Srstka denied Onnen’s motion for a new trial.

[¶7.]        On appeal, the issues presented are:

             1.     Whether Judge Srstka erred in concluding that the District’s
                    decision was not arbitrary and capricious, or an abuse of
                    discretion.

             2.     Whether Judge Srstka abused his discretion in denying Onnen’s
                    motion for a new trial because of his alleged bias.

                             STANDARD OF REVIEW

[¶8.]        SDCL 13-46-6 allows a party to appeal a school board decision:

             The trial in the circuit court shall be de novo according to the
             rules relating to special proceedings of a civil nature so far as
             such rules are applicable and not in conflict with the provisions
             of this chapter and the court shall enter such final judgment or
             order as the circumstances and every right of the case may
             require and such judgment or order may be enforced by writ of
             execution, mandamus, or prohibition, or by attachment as for
             contempt.

In Blondo v. Bristol School District #18-1, we explained that “[d]espite the ‘de novo’

language of this statute, this Court has long held that the standard of review is not

that traditionally used in an ordinary trial de novo. Instead, great deference is

given to the good faith determinations of school boards whether to renew a teacher’s

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contract.” 2007 S.D. 8, ¶ 11, 727 N.W.2d 306, 309 (citing Wuest v. Winner Sch. Dist.

59-2, 2000 S.D. 42, ¶ 12, 607 N.W.2d 912, 915; Jager v. Ramona Bd. of Educ., 444

N.W.2d 21, 25 (S.D. 1989)). Furthermore, we have repeatedly stated that:

             The circuit court’s review is not a trial de novo in the ordinary
             sense of the phrase. School boards are creatures of the
             Legislature and the judiciary may not interfere with their
             decisions unless the decision is made contrary to law. Therefore,
             as long as the school board is legitimately and legally exercising
             its administrative powers, the courts may not interfere with nor
             supplant the school board’s decision making process. Only the
             legality of the decision, not the propriety of the decision, may be
             reviewed by the courts. The legality of a school board’s decision
             is determined by a two-prong review. First, the procedural
             regularity of the decision is reviewed. This review includes
             whether the school board was vested with the authority to act
             and whether all procedural requirements required by law were
             followed. Second, the school board’s decision is reviewed to
             determine whether the decision was arbitrary, capricious or an
             abuse of discretion.

Hicks v. Gayville-Volin Sch. Dist., 2003 S.D. 92, ¶ 10, 668 N.W.2d 69, 73 (citing

Gauer v. Kadoka Sch. Dist. No. 35-1, 2002 S.D. 73, ¶ 5, 647 N.W.2d 727, 730).

                                     ANALYSIS

[¶9.]        1.    Whether Judge Srstka erred in concluding
                   that the District’s decision was not arbitrary and
                   capricious, or an abuse of discretion.

[¶10.]       Judge Srstka found that Onnen was an at-will employee and was not

part of any bargaining unit. Onnen argues that he was not an at-will employee

because he had an employment contract for a specified term. As part of his

argument that he was not an at-will employee, Onnen contends that Judge Srstka

misapplied SDCL 60-4-4, which provides: “An employment having no specified term

may be terminated at the will of either party on notice to the other, unless


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otherwise provided by statute.” Onnen argues that SDCL 60-4-4 means that “a

specified term is all that is needed by the plain language of the statute to take the

employment out of the at will category.”

[¶11.]       In this case, it is not necessary to determine whether Onnen was an at-

will employee, because even if he is correct, his employment contract allowed him to

be terminated for cause. It provides in part:

             Employee agrees to devote his/her utmost skill to the
             performance of the duties to be assigned by the District . . . and
             in all respects to faithfully comply with, obey and enforce all of
             the policies, rules and regulations of the District. . . . The
             parties acknowledge that the District may terminate or suspend
             Employee’s employment, or discipline Employee, all as provided
             by South Dakota statute, by the policies and regulations of
             District, and/or by the negotiated agreement of any employee
             group authorized to enter into collective bargaining for
             Employee. Any such termination, discharge or discipline may
             result in the discontinuance or suspension of compensation to
             the Employee.

[¶12.]       Judge Srstka concluded that the District had cause to terminate

Onnen. Judge Srstka found that “[t]he unofficial transcripts of the students who

had failed classes or not completed classes and were still awarded diplomas or

degrees despite not meeting graduation requirements support the school board’s

decision to dismiss Onnen.” Further, he found that Onnen’s own documents

purporting to track diplomas and degrees “show inconsistencies and incomplete

work by Onnen.” Judge Srstka also found that Onnen did not inform his supervisor

of the errors. Based on these findings, Judge Srstka concluded that the “[Board’s]

decision was not arbitrary, capricious or an abuse of discretion” and “there is

relevant and competent evidence showing support for the action taken.”


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[¶13.]       Onnen agreed in his employment contract “to devote his utmost skill to

the performance of the duties to be assigned by the District . . . and in all respects to

faithfully comply with, obey and enforce all of the policies, rules and regulations of

the District.” The findings support the District’s contention that it had cause to

terminate Onnen because he failed to comply with this contractual requirement.

Onnen has not shown any of Judge Srstka’s findings to be clearly erroneous. We

therefore affirm this issue.

Onnen Was Not Denied Procedural Due Process

[¶14.]       Onnen argues he was denied procedural due process when he was

terminated because SDCL 13-39-65 required that he be given 60 days’ notice before

termination. SDCL 13-39-65, which is in the chapter governing vocational and

technical education, provides:

             The continuing contract provisions set forth in §§ 13-43-9.1 to
             13-43-11, inclusive, do not apply to any person employed in a
             public postsecondary technical institute. At least sixty days
             prior to the termination of an employee in a postsecondary
             technical institute, the governing board shall notify in writing
             the employee of such termination.

Specifically, Onnen argues the statutes referenced in SDCL 13-39-65 have been

repealed and are therefore a nullity. He urges this Court to consider only the

second sentence of the statute.

[¶15.]       Judge Srstka noted that the provisions set forth in SDCL 13-43-9.1 to -

11 were repealed in 1995. They related to notice to tenured teachers of intent not to

renew contracts, availability of evaluation files, circumstances after notice,

evaluation, and notice of deficiencies. Judge Srstka found that the statutes


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referenced only applied to teachers. Reading the statutes in pari materia, he said

“it appears that SDCL 13-39-65 was also intended to apply only to teachers.”

Further, “if 60 days’ notice [was] required to terminate any at-will employee, such

as a registrar, secretary, janitor, and others, the meaning of at-will employment in

the context of employment at a technical school such as STI would be completely

obliterated.” Consequently, Judge Srstka found that SDCL 13-39-65 did not apply

to Onnen. In the alternative, he found that even if SDCL 13-39-65 did apply,

Onnen would not be entitled to relief by reinstatement.

[¶16.]       We agree. To determine legislative intent, this Court will take other

statutes on the same subject matter into consideration and read the statutes

together, or in pari materia. Loesch v. City of Huron, 2006 S.D. 93, ¶ 8, 723 N.W.2d

694, 697. We have recognized:

             The object of the rule of pari materia is to ascertain and carry
             into effect the intent of the legislature. It proceeds upon the
             supposition that the several statutes were governed by one spirit
             and policy, and were intended to be consistent and harmonious
             in their several parts and provisions. For purposes of
             determining legislative intent, we must assume that the
             legislature in enacting a provision has in mind previously
             enacted statues relating to the same subject matter. As a result,
             the provision should be read, if possible, in accord with the
             legislative policy embodied in those prior statutes.

Id. (citing State v. Chaney, 261 N.W.2d 674, 676 (S.D. 1978)). Although the statutes

referenced in SDCL 13-39-65 have been repealed, they do indicate the legislative

intent at the time the statute was enacted. As Judge Srstka noted, those statutes

related exclusively to teachers. Reading the statute as a whole, the only conclusion




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is that SDCL 13-39-65 governed notice only to teachers. Because Onnen was not a

teacher at STI, he was not entitled to 60 days’ notice before termination.

[¶17.]       2.     Whether Judge Srstka abused his discretion in denying
                    Onnen’s motion for a new trial because of his alleged
                    bias.

[¶18.]       “The decision to grant a new trial is left in the sound judicial discretion

of the trial court” and the “decision will not be disturbed absent a clear showing of

abuse of discretion.” Sherburn v. Patterson Farms, Inc., 1999 S.D. 47, ¶ 8, 593

N.W.2d 414, 416. Onnen moved for a new trial based on “ex parte communications

Judge Srstka had received from a major witness [Rokusek] for the Defendant.”

Rokusek posted a message on Judge Srstka’s Facebook page wishing him a happy

birthday in Czech. The Facebook post occurred while this case was pending but

before Rokusek testified. Onnen also argues that Judge Srstka should have recused

himself because two relatives within the third degree of relationship were

employees of the District.

[¶19.]       Onnen’s motion for Judge Srstka’s recusal from hearing his motion for

a new trial was denied by Presiding Judge Caldwell. Judge Caldwell found that

Onnen had already submitted to Judge Srstka’s jurisdiction, that Onnen had

waived the right to request recusal, and that Onnen’s “allegations regarding

Facebook usage or distant relatives . . . do no rise to a level that would require

recusal of a judge from hearing a case.” Onnen did not appeal Judge Caldwell’s

decision.

[¶20.]       Judge Srstka then heard and denied Onnen’s motion for a new trial.

He noted that he was not biased by any ex parte communication by Rokusek

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wishing him a happy birthday on his Facebook page. Judge Srstka also stated he

was not affected by his relative working for the school district, as she was a teacher

at an elementary school and had no interest in the case. He indicated he did not

know of a second relative working for the District.

Ex Parte Communication

[¶21.]       The District argues that the Facebook post was not, by definition, an

“ex parte communication” because it was not related to any court action. Rather, it

was only incidental contact between Judge Srstka and a witness and was not

related to the case itself. The District is correct. Canon 3(B)(7) of the Code of

Judicial Conduct provides that a “judge shall not initiate, permit, or consider ex

parte communications, or consider other communications made to the judge outside

the presence of the parties concerning a pending or impending proceeding . . . .”

SDCL 16-2-appx-c3(B)(7) (emphasis added). The plain language of Canon 3(B)(7)

indicates that ex parte communications are a violation of the Canon when they

concern “a pending or impending proceeding” and are not otherwise allowed. Onnen

makes no allegation that the Facebook post in any way concerned his proceeding.

[¶22.]       Even if the Facebook post was considered an ex parte communication,

Onnen still cannot demonstrate that it warrants a new trial. In State v. Thorsby,

2008 S.D. 100, 757 N.W.2d 300, we considered an ex parte communication

allegation where a clerk improperly placed a note in the defendant’s file regarding

her conduct towards the clerk. The note amounted to an ex parte communication to

the judge. Id. ¶ 13, 753 N.W.2d at 304. We stated that “where an ex parte

communication is not invited or initiated by the judge, reversible error occurs only if

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the adverse party is prejudiced by an inability to rebut the facts communicated and

if improper influence appears with reasonable certainty.” Id. (citing O’Connor v.

Leapley, 488 N.W.2d 421, 423 (S.D. 1992)).

[¶23.]       In this case, Judge Srstka did not invite or initiate the Facebook post

by Rokusek. Judge Srstka noted that the post was only one of many and that he did

not personally know Rokusek. Furthermore, Judge Srstka did not connect the post

to Rokusek even after he testified. Judge Srstka also stated that “Rokusek’s

message is not related to this case, and it did not affect my decision-making, as I did

not know it occurred.” The post did not relate to any facts regarding the case and

certainly not to any facts Onnen would need to rebut. Also, there is no indication in

the record that Judge Srstka was improperly influenced by the post.

Judge Srstka Was Not Required to Disqualify Himself Because of Relatives

[¶24.]       Onnen argues that Judge Srstka should have disqualified himself

pursuant to Canon 3(E)(d)(iii) of the South Dakota Code of Judicial Conduct, which

provides in part:

             A judge shall disqualify himself or herself in a proceeding in
             which the judge’s impartiality might reasonably be questioned,
             including but not limited to instances where . . . the judge or the
             judge’s spouse, or a person within the third degree of
             relationship to either of them or the spouse of such a person . . .
             is known by the judge to have a more than de minimis interest
             that could be substantially affected by the proceeding, but the
             judge shall disclose such de minimis interest to the parties[.]

SDCL 16-2-appx-c3(E)(d)(iii). Onnen, citing Olson v. Merrill Lynch, Pierce, Fenner

& Smith, Inc., 51 F.3d 157, 159 (8th Cir. 1995), states that “when a person is in the

judicial position of finding the facts and interpreting the law, non-disclosure of


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matters that must be disclosed pursuant to the applicable rules is a showing of

evident partiality by that person, especially when that non-disclosure ‘creates an

impression of possible bias.’”

[¶25.]        We have previously stated that “the decision to preside over a case is

addressed to the sound discretion of the trial judge.” Hickmann v. Ray, 519 N.W.2d

79, 80 (S.D. 1994) (citing State v. Lohnes, 432 N.W.2d 77, 80 (S.D. 1988)). “The

judge is entitled to consult his own mind and he, perhaps better than anyone else,

knows whether or not he can give a party a fair and impartial trial in every way.”

Id. (citing Tri-State Refining v. Apaloosa Co., 452 N.W.2d 104, 107 (S.D. 1990)).

Judge Srstka unequivocally stated that he was not affected by the casual greeting

from Rokusek or his family member’s employment as a kindergarten teacher.

Furthermore, Judge Srstka stated: “I gave the parties a fair and impartial trial, and

a new trial is not warranted.” Additionally, Judge Srstka’s sister-in-law was one of

approximately 3,500 District employees and not in a management position. Onnen

has not shown how this connection could even be considered de minimis. We

conclude that Judge Srstka did not abuse his discretion in denying Onnen’s motion

for a new trial.

                                   CONCLUSION

[¶26.]        Because there was cause to terminate Onnen, the decision was not

arbitrary and capricious or an abuse of discretion. Onnen was not denied

procedural due process when he was terminated. Finally, Judge Srstka did not

abuse his discretion in denying Onnen’s motion for a new trial. We affirm.



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[¶27.]     KONENKAMP, ZINTER and SEVERSON, Justices, and

MEIERHENRY, Retired Justice, concur.




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