Before McMILLIN, P.j., King, And Payne, JJ.
The opinion of the court was delivered by: McMILLIN, P.j
FLORA BROWN, APPELLANT v. COLUMBUS MUNICIPAL SCHOOL DISTRICT, APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 10/28/96
TRIAL JUDGE: HON. WOODROW WILSON BRAND, JR.
COURT FROM WHICH APPEALED: LOWNDES COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES (OTHER THAN WORKERS' COMPENSATION) TRIAL COURT DISPOSITION CHANCELLOR UPHELD BOARD'S NON-RENEWAL OF APPELLANT'S TEACHING CONTRACT.
DISPOSITION AFFIRMED - 4/7/98
This case entered the judicial system as an appeal by Flora Brown from the decision of the Columbus Municipal School Board, after a full hearing on the matter, to decline to renew her teaching contract at Columbus High School East for the 1996-1997 school year. The case comes to this Court as an appeal from the Chancery Court of Lowndes County, the initial reviewing authority. The chancellor affirmed the board's decision and Brown now asks us to overturn that decision. We decline to do so and, instead, affirm the chancellor's judgment.
Brown received timely notice under section 37-9-105 of the Mississippi Code that a determination had been made to not renew her teaching contract for the following school year. Brown exercised her right to be furnished written notice of the reasons for that decision and to have a hearing on the decision as permitted under section 37-9-109. The board exercised its discretion, under section 37-9-111, to appoint a hearing officer to conduct the hearing. Dr. Merritt was named to conduct the hearing. The written notice of reasons for non-renewal charged Brown generally with neglect of duty, insubordination, defiance of authority, tardiness and excessive absences from her classroom, violations of school board policies, and violations of the Family Education Right to Privacy Act of 1974. These general allegations were followed by a detailed recitation of specific incidents relied upon by the school to substantiate each of the general charges.
Dr. Merritt conducted the hearing at which substantial evidence was presented to establish the facts concerning Brown's inappropriate professional conduct. Brown, in most instances of her defense, simply denied that the things of which she was accused had occurred. She also asserted, in some circumstances, that other teachers who had committed similar acts had escaped any disciplinary action. Dr. Merritt issued a report to the board in which he concluded that the evidence was sufficient to substantiate the various allegations of misconduct asserted against Brown. The report did admonish the board as to their duty to review the transcript and form their own independent Conclusions based upon evidence appearing in the record. The board then adopted a resolution finding, as a matter of fact, that there was substantial credible evidence in the record to demonstrate that Brown was, in fact, guilty of the various general allegations of misconduct. The board further found that Brown failed to meet her burden to show that the reasons offered had no basis in fact. Finally, the board concluded that Brown neither offered any plausible reason to excuse her actions nor showed that the decision to not renew her contract was, in actuality, based on some legally impermissible reason. Having so found, the board voted three to two to uphold the previous preliminary decision to not renew Brown's contract.
Brown raised a number of issues in her appeal to the Lowndes County Chancery Court. However, in her appeal to this Court, she has narrowed her focus to one issue. Brown charges that she was denied a "fair and impartial hearing" on the issue of her non-renewal as is guaranteed by statute. Miss. Code Ann. § 37-9-109 (1996). Her claim is based upon an assertion that the hearing officer was biased or prejudiced against her. In support of this claim she points to two facts. First, she notes that the Columbus superintendent and the hearing officer had attended the same graduate school at the same time and that they had subsequently worked together for a number of years in the Jackson public school system. She claims that this connection would necessarily cause the hearing officer to give undue deference to the superintendent's position in the matter. Secondly, she points out that the hearing officer was the same one who had, some weeks earlier, acted as a hearing officer in a disciplinary proceeding where Brown was suspended for five days for an alleged act of wilful disobedience of an order from the superintendent. Her argument on this point seems to focus both (a) on the officer's general prejudice against Brown that would necessarily exist because of his findings against her in the prior proceeding and (b) on the fact that the earlier incident constituted one of the facts relied upon for non-renewal. Therefore, she claims that her case against non-renewal was, in effect, preJudged since it was foreordained that this hearing officer would find that at least one of the charges of misconduct had merit.
We have little problem dismissing Brown's first assertion. Administrative hearing officers are not subject to the same stringent recusal requirements as apply in the judicial branch. Byrd v. Green County Sch. Dist., 633 So. 2d 1018, 1023 (Miss. 1994). The officer is entitled to "a presumption of honesty and integrity." Spradlin v. Board of Trustees of Pascagoula Mun. Separate Sch. Dist., 515 So. 2d 893, 898 (Miss. 1987). A showing of a previous acquaintance between the superintendent and the hearing officer while attending the same school and working in the same school system is not sufficient to overcome this presumption. The hearing officer in this case submitted himself to an extensive voir dire by Brown's attorney before the hearing began. That examination showed that the superintendent and the hearing officer had never enjoyed a particularly close social or personal relationship, but that their contacts had been primarily professional. In response to the request that he recuse himself, the hearing officer stated that he felt he would be able to conduct a fair and impartial hearing. Recognized grounds for recusal include a showing of personal or financial interest in the matter, evidence of misconduct on the hearing officer's part, or feelings of personal animosity toward the subject of the hearing. Byrd, 633 So. 2d at 1023. Nothing in the record indicates that Brown's counsel was able to show the existence of any of these factors. Neither are we directed to any other fact of sufficient gravity to overcome the presumption of fairness that Dr. Merritt enjoyed under the law. Keeping in mind that the hearing officer is not, in all events, the ultimate fact-finder nor the ultimate decision-maker, we can discover nothing in this record that would convince us that the officer's refusal to recuse himself deprived Brown of a fair and impartial hearing.
The second issue involves an interesting question, but the real dilemma posed by Brown's assertion extends beyond the fact that the hearing officer was the same in two separate hearings involving one of the same disputed issues of fact. The broader implications of Brown's argument arise because, as we have previously observed, the hearing officer does not act as a finder of fact nor does he have any decision-making authority on the ultimate issue. Though it appears from previous published decisions of the Mississippi Supreme Court that, in many instances, a practice has arisen where the hearing officer makes proposed findings and a recommendation of final Disposition, the statute itself makes clear that such activity is not contemplated under the law. Section 37-9-111(4) provides that "[t]he board shall review the matters presented before it, or if the hearing is conducted by a hearing officer, the record of the proceedings and, based solely thereon, conclude whether the nonreemployment determination is a proper employment decision...." Miss. Code Ann. § 37-9-111(4) (1996). Under the statutory scheme devised for non-renewal hearings, the hearing officer's statutory role appears to be nothing more than a duty to maintain order at the hearing and to see that the presentation of evidence by the participants is limited to those matters germane to the issues. Because the ultimate fact-finder ...