#26471-a-SLZ

2013 S.D. 39

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                     ****
SHEILA HUTH,                                Plaintiff and Appellant,

      v.

BERESFORD SCHOOL DISTRICT #61-2
and BOARD OF EDUCATION,                     Defendants and Appellees.


                                     ****

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE FIRST JUDICIAL CIRCUIT
                    UNION COUNTY, SOUTH DAKOTA

                                     ****

                      THE HONORABLE GLEN W. ENG
                                Judge

                                     ****

ANNE PLOOSTER of
South Dakota Education Association
Pierre, South Dakota                        Attorney for plaintiff
                                            and appellant.


THOMAS H. FRIEBERG of
Frieberg, Nelson & Ask, LLP
Beresford, South Dakota                     Attorneys for defendants
                                            and appellees.

                                     ****

                                            CONSIDERED ON BRIEFS
                                            ON APRIL 22, 2013

                                            OPINION FILED 05/29/13
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ZINTER, Justice

[¶1.]        Sheila Huth taught fifth grade in the Beresford School District. In the

spring of 2011, the Beresford Board of Education voted not to renew her teaching

contract for the upcoming school year as a part of a reduction-in-force (RIF). Huth

appealed to the circuit court, which affirmed. We affirm because we conclude that

the policy for reductions in force was governed by a 2010-2011 Negotiated

Agreement (2010-2011 Agreement) and the policy was correctly applied.

                            Facts and Procedural History

[¶2.]        Huth was a continuing contract, fifth-grade teacher and girls’

basketball coach in the Beresford School District. During the spring of 2010, Huth

received notice that her contract was not being renewed for cause. She challenged

the Board’s decision not to renew her contract. She also filed a grievance criticizing

Superintendent Brian Field’s handling of parental complaints related to her

coaching. Ultimately, in conjunction with a stipulated agreement, Huth resigned

from her coaching contract but retained her teaching contract for the upcoming

2010-2011 school year.

[¶3.]        In March 2011, Field notified the Beresford Education Association

(BEA) and Huth that significant budget cuts would be necessary to meet monetary

shortfalls for the upcoming school year. In order to reduce the budget, Field

suggested several staff reductions, including the elimination of Huth’s fifth-grade

teaching position. To accommodate the reduction of Huth’s position, the fifth-grade

class would be reduced from three sections to two. Field indicated that it was more

important to maintain the smaller, three-section class sizes in the lower grades.


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[¶4.]         Field afforded both BEA and Huth the opportunity to suggest

alternatives to the proposed cuts. BEA and Huth suggested the reduction of

educational programs and reshuffling teaching positions based on an upcoming

resignation. 1 Field rejected the proposed alternatives. He indicated that the

remaining educational programs were important and he expressed concerns

regarding shuffling teaching positions. 2

[¶5.]         Field maintained his recommendation that Huth’s position be

eliminated. Field suggested eliminating Huth’s position instead of two other fifth-

grade teachers, Mrs. Carlson and Mr. Ebert. Field reasoned that: Carlson and

Ebert had more endorsements than Huth; they were deemed by the administration

to be better suited to meet the needs of the District; and they were deemed better

suited to develop and advance programs, including extracurricular activities.

[¶6.]         Per Field’s recommendation, the Board of Education voted not to

renew Huth’s teaching contract for the 2011-2012 school year. The Board followed a

staff reduction policy in the 2010-2011 Agreement between BEA and the District.

[¶7.]         Huth appealed to the circuit court. She argued that the Board utilized

the wrong RIF policy in not renewing her contract. Huth contended that the 2010-

2011 Agreement contained an updated RIF policy that had not been properly


1.      Huth recommended cutting: “[l]ess experienced teachers, Art, Music, PE,
        Behavior Assistants, and Guidance Counselors[.]” Huth also suggested
        shuffling staff based on “individuals who ha[d] intentions to resign[.]”

2.      Field noted that he had spoken with the high school biology teacher who
        indicated that she would likely resign before the end of the school year.
        However, Field did not want to shuffle positions to accommodate this opening
        because that would require a teacher with a non-science major to take over
        the biology position.

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negotiated. Huth contended that a RIF policy relied upon by the District in 2006

(2006 RIF policy) should apply. Under the 2006 RIF policy, the Board would have

been required to terminate teachers without continuing contract status before

Huth’s contract was not renewed. The circuit court affirmed the Board’s decision.

Huth appeals.

                                       Decision

[¶8.]        An appeal from a school board’s decision “may be taken to the circuit

court . . . within ninety days after the rendering of such decision.” SDCL 13-46-1.

“A proceeding in circuit court on an appeal pursuant to SDCL 13-46-1 is a trial de

novo.” Scheller v. Faulkton Area Sch. Dist. No. 24-3, 2007 S.D. 42, ¶ 5, 731 N.W.2d

914, 915. However, “[t]he appeal to the circuit court is not a trial de novo in the

true sense of the phrase[.]” Id. The trial de novo under this statute “has the limited

function of receiving evidence for the sole purpose of determining the legality, and

not the propriety, of the school board’s decision.” Id.

Governing Policy

[¶9.]        Huth first argues that the Board erroneously utilized the RIF policy

that was in the 2010-2011 Agreement. Huth contends that the Board should have

applied the 2006 RIF policy instead.

[¶10.]       “Trade agreements or collective bargaining agreements are contracts

under South Dakota law.” Hanson v. Vermillion Sch. Dist. No. 13-1, 2007 S.D. 9, ¶

27, 727 N.W.2d 459, 467. “Contracts negotiated between teachers and public school

districts are like any other collective bargaining agreement.” Id. ¶ 27, 727 N.W.2d




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at 468. “Disputes over collective bargaining agreements negotiated between school

districts and teachers are settled by application of general contract principles.” Id.

[¶11.]         The 2010-2011 Agreement was adopted by BEA and the Board on

October 18, 2010. Page twenty-two of that Agreement sets forth the “Staff

Reduction Policy.” Page thirty-two reflects that the Agreement was signed by two

BEA negotiators on October 14, 2010. The text of the Agreement directly above

those signatures provides: “This agreement shall be the accepted guide and policy

for the BEA and the Board of Education and these agreements shall take

precedence and priority over all other policies and regulations made by the Board.”

[¶12.]         Notwithstanding the foregoing language, Huth argues that the RIF

policy contained in the 2010-2011 Agreement did not apply because that policy was

not properly negotiated. Huth contends that the 2006 RIF policy was in effect when

her teaching position was eliminated. 3 Huth relies on the affidavit of BEA

negotiator Deb Bonte. Bonte indicated that she was “not aware of [BEA] and the . .

. District formally negotiating the [2010-2011 RIF] policy since it was originally

negotiated between the . . . District and the [BEA].” 4 However, Bonte’s “non-

awareness” of “formal negotiation” on the 2010-2011 RIF policy is irrelevant

because that policy is clearly contained in the 2010-2011 Agreement. The


3.       The District conceded that: “[i]f the 2006 version of the staff reduction policy
         had been a part of the 2010-2011 Negotiated Agreement, Huth clearly would
         have been entitled to be retained since she had attained continuing contract
         status with the District and Mr. Ebert had not.”

4.       Bonte also noted that the last “negotiated” RIF policy, which was relied upon
         by the District in 2006, was contained within the 1992-1993 negotiated
         agreement between BEA and the District.


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signatures and date of the 2010-2011 Agreement are not disputed, and the RIF

policy in the 2010-2011 Agreement is unambiguous. That agreement provides that

it “shall take precedence and priority over all other policies[.]” The RIF policy in the

2010-2011 Agreement governed Huth’s termination. 5

Application of the 2010-2011 RIF Policy

[¶13.]         Huth argues that the Board improperly applied the 2010-2011 RIF

policy. “[G]reat deference is given to the good faith determinations of school boards

on decisions of whether to renew a teacher’s contract.” Scheller, 2007 S.D. 42, ¶ 5,

731 N.W.2d at 915. Accordingly, we consider “the legality, and not the propriety, of

the school board’s decision.” Id. “The determination of legality is a two-pronged

process: (1) whether the School Board acted legally, and (2) whether the School

Board’s decision was arbitrary, capricious or an abuse of discretion.” Id. ¶ 5, 731

N.W.2d at 915-16. In assessing the first prong, we consider whether the proper

procedural requirements were followed. Blondo v. Bristol Sch. Dist. # 18-1, 2007

S.D. 8, ¶ 11, 727 N.W.2d 306, 309 (stating that the first prong of the legality

determination requires a review of “the procedural regularity of the decision”).




5.       BEA filed a grievance with the Department of Labor and Regulation, arguing
         that the District committed an unfair labor practice in using the 2010-2011
         RIF policy. BEA raised the same argument that is raised here; i.e., that the
         2010-2011 RIF policy was not negotiated. Both an administrative law judge
         and the Sixth Judicial Circuit Court (on appeal) concluded that the 2010-
         2011 Agreement and RIF policy were negotiated, that the 2010-2011 RIF
         policy applied to Huth, and that no unfair labor practice was committed.
         Beresford Educ. Ass’n v. Beresford Sch. Dist. and Bd. of Educ., Civ. No. 12-
         350, memorandum op. (6th Cir. S.D. Dec. 26, 2012). We take judicial notice
         that BEA did not appeal the Sixth Judicial Circuit Court’s decision.

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[¶14.]       Because Huth does not argue that the proper procedural requirements

were not followed, we address the second test: whether the Board’s decision to

terminate Huth’s position “was arbitrary, capricious or an abuse of discretion.” See

Scheller, 2007 S.D. 42, ¶ 5, 731 N.W.2d at 916. “An arbitrary or capricious decision

is one that ‘is: based on personal, selfish, or fraudulent motives, or on false

information, and is characterized by a lack of relevant and competent evidence to

support the action taken.’” Hicks v. Gayville-Volin Sch. Dist., 2003 S.D. 92, ¶ 11,

668 N.W.2d 69, 73 (quoting Coyote Flats, L.L.C. v. Sanborn Cnty. Comm’n, 1999

S.D. 87, ¶ 14, 596 N.W.2d 347, 351). “An abuse of discretion refers to a discretion

exercised to an end or purpose not justified by, and clearly against reason and

evidence.” Id.

[¶15.]       Huth argues that the Board’s decision was retaliatory and based on the

grievance she filed during the 2009-2010 school year. However, there is no evidence

demonstrating a connection between the grievance Huth filed in the spring of 2010

and the determination not to renew her contract in the spring of 2011. Further, the

issue in Huth’s grievance related to her coaching position from which she had

resigned. Although Huth testified that she had a “feeling” the elimination of her

position was because of the previously filed grievance, the record is insufficient to

find that the Board’s decision was based on retaliation for the earlier grievance.

[¶16.]       Huth also argues that the Board failed to properly apply the 2010-2011

RIF policy. The record does not support her argument. The 2010-2011 RIF policy

provided that the following criteria would be utilized in assessing staff reductions:

“student needs and program priorities, administrative staff recommendations based


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upon evaluation records, certification and education qualifications and competency,

seniority (total service time rendered to the school district), and state and federal

requirements.” Superintendent Field testified that he based his staff reduction

recommendations on student needs and program activities. He also testified that

the other fifth-grade teachers had more teaching endorsements and were more

involved in extracurricular activities. Field acknowledged that Huth had been

teaching in the District longer than Ebert, but explained that the other factors,

which required him to consider the needs of the students and the District, weighed

more heavily in favor of not renewing Huth’s teaching position. The record does not

support Huth’s contention that the Board’s decision to eliminate her position was

arbitrary, capricious, or an abuse of discretion.

[¶17.]       Affirmed.

[¶18.]       GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and

WILBUR, Justices, concur.




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