The Warren School Board violated the Teacher Fair Dismissal Act in its attempted termination of its ROTC instructor, the Arkansas Court of Appeals ruled Wednesday.

The appeals court upheld 10th Judicial District Circuit Court Judge Sam Pope’s reversal of school board’s 2010 decision to terminate Col. Robert Avery, who had been acquitted of first-degree sexual assault of a 16-year-old female student.

“Robert Gibson and I are both very pleased by the Court of Appeals affirmation of Judge Pope’s decision that Col. Avery had been wrongfully terminated by Warren School Superintendent Andrew Tolbert and the Warren School Board,” said Avery’s Monticello attorney Cliff Gibson.

The school board terminated Avery’s teaching contract after Avery was charged with first-degree sexual assault. Avery appealed the school board’s decision to the Bradley County Circuit Court which found that the school board was not a fair and impartial and  considered evidence that went beyond the notice of termination provided to Avery.

A notice-of-termination recommendation must include a statement of the grounds for the termination recommendation and the school board may not consider at the hearing any new reasons that were not specified in the notice.

The Warren School District subsequently appealed Judge Pope’s ruling to Arkansas Court of Appeals, arguing that he erred in overturning the school board’s decision.

In its opinion affirming Pope’s ruling, the Court of Appeals outlined a “Chronology of Pertinent Events” in the case. You can watch the oral arguments here.

During Avery’s January 28, 2010 hearing before the Warren School Board, the teen’s accusatory five-page letter was admitted into evidence.

Also during the hearing, Warren School District Superintendent Andrew Tolbert testified that he first learned of the alleged incident from the high school principal, Gary Jackson, who said sometime before the charges were filed against Avery, the teen’s mother brought him a cell phone that had been given to the teen by Avery.

Avery objected to the admission of the letter because his accuser was not present and the date of the alleged offense was changed in the charging document. He also objected to any testimony about the cell phone because it was not a ground contained in the notice of termination.

The attorney for the school board, W. Paul Blume, countered that since Avery gave inconsistent statements regarding the cell phone, the issue of the cell phone was relevant to Avery’s credibility. The objection was overruled and testimony regarding the cell phone was allowed.

Tolbert testified that on November 24, 2009, he and the principal confronted Avery with the sexual-abuse allegations. Avery denied the allegations.

Tolbert also testified that Avery initially denied giving the teen a cell phone but later admitted doing so, saying he had collected some cell phones and given them to different people.

Over Avery’s objections, Tolbert testified that there were video images of Avery carrying a large trash bag on the evening of November 26, 2009 while leaving the building at the high school where Avery’s office was located. Also over Avery’s objection, Tolbert testified that the teen told the assistant principal that there were some inappropriate pictures on Avery’s school computer.

At the conclusion of the hearing, upon motion by board member Anne Smith, the school board unanimously voted to terminate Avery’s employment.

Avery appealed that decision to the Bradley County Circuit Court.

During the intervening 20-month period between Avery’s termination hearing and his Bradley County Circuit Court hearing of appeal, a jury acquitted Avery of the sexual assault charges, an administrative law judge dismissed allegations against Avery in an Arkansas Department of Human Services maltreatment case after finding insufficient evidence of sexual abuse of the teen by Avery, and the Arkansas Department of Education dismissed the Warren School Board’s complaint to revoke Avery’s teacher’s license.

Those actions were admitted into evidence at Avery’s hearing of appeal in the Bradley County Circuit Court.

At the hearing, there was contradictory testimony regarding the reason for Avery’s termination.

Superintendent Tolbert testified that the reason he had recommended Avery for termination was because a criminal charge had been filed against Avery.

However, Warren School Board President Jerry Daniels testified that the school board’s termination of Avery had nothing to do with criminal matters. He said he was terminated him for having a student in his home inappropriately.

Still another school board member, Anne Smith, who made the motion to terminate Avery and voted in favor of his termination, testified that the criminal charge was only a part of the reason for the termination. She said the other reasons included the cell phone issue, the computer issue, and Avery’s presence on campus at odd times. Smith acknowledged that she had no evidence of whether Avery had committed a sexual assault, and she agreed that the school board “rubber-stamped” the superintendent’s decision to terminate Avery.

Portions of the testimony from Avery’s criminal trial in which Avery was acquitted of sexual assault were also introduced at the circuit court appeal hearing.

At the conclusion of the hearing, Judge Pope took the matter under advisement and subsequently declared the school board’s termination of Avery void and reinstated his employment contract with the Warren School District.

Pope found that the Warren School Board was not a fair and impartial tribunal, citing evidence that Tolbert had off-the-record discussions with board members prior to the hearing. Pope also found that the Warren School Board violated the provisions of the Teacher Fair Dismissal Act by considering evidence that went beyond the termination notice provided to Avery.

Pope ordered the Warren School District to make arrangements for Avery to return to work and resume the position that he held at the time of the attempted termination. Pope also awarded Avery $201,965. 92 in back pay and benefits.

The Warren School District appealed that decision to the Arkansas Court of Appeals.

On appeal, the school district argued that Pope erred in finding that Avery did not receive a fair and impartial hearing before the school board.

The district argued that in the absence of a claim of personal animosity, illegal prejudice, or a personal or financial stake in the outcome, school board members are entitled to a presumption of honesty and integrity in their determination on personnel matters.

“The (Warren School) District misses the mark,” Judge Kenneth Hixon wrote in the opinion for the Arkansas Court of Appeals.

“Here, the circuit court’s finding that Avery did not receive a fair and impartial hearing was not based on any perceived lack of honesty or integrity of the school board members,” Judge Hixon said. “Rather, the circuit court’s finding was based on the facts that the school board heard evidence regarding the alleged incident through statements made by the superintendent outside of the termination hearing and that, at the hearing, the school board considered evidence regarding allegations not included in the notice of termination. School board member Anne Smith testified by deposition that ‘prior to Colonel Avery’s termination hearing, Mr. Tolbert was providing us with information regarding the results of the investigation.’ Colonel Avery was not invited to those meetings, and the information was discussed in executive session. There is no record of those discussions.'”

The school district also argued that Pope erred in finding that the school board went beyond the reasons contained in the termination notice in making its decision.

All school employees must receive due process, which requires that the Teacher Fair Dismissal Act procedures be substantially complied with in any termination or nonrenewal situation. A notice-of-termination recommendation must include a statement of the grounds for the recommendation of termination and the board of directors may not consider at the hearing any new reasons that were not specified in the notice.

“As found by the circuit court, we agree that there was a lack of substantial compliance with these provisions,” Judge Hixon said. “In this case, the notice of termination provided by the (school district) to Avery stated that the only reason his termination was being recommended was because he was charged with first-degree sexual assault of a minor. Avery was not put on notice that he would have to defend against any other allegations. Notwithstanding that fact, the District introduced evidence, over Avery’s repeated objections, that Avery had given (the teen) a cell phone, that he was seen on video leaving the school with a trash bag, and that he allegedly had inappropriate photos on his school computer. None of these three allegations were contained in the notice of termination.”

The school district argued, and the Arkansas Court of Appeals agreed, that evidence regarding the cell phone was permissible in that it was relevant to Avery’s credibility because he initially denied giving the teen the phone. It was not permissible, however, as substantive evidence as a reason for termination.

Further, the other two reasons — leaving the school building with a trash bag and allegedly having inappropriate photos on his school computer — did not go to Avery’s credibility; were offered in support of his termination, Judge Hixon said.

“Although the District submits that the sole reason for termination considered by the school board was the sexual assault charge provided in the notice, the posthearing deposition evidence of school board members introduced to the circuit court reflected otherwise,” Judge Hixon said. “School board president Jerry Daniels testified that ‘we were terminating Avery for having a student in his home inappropriately,’ and that Avery’s dismissal had nothing to do with any criminal matters.

“School board member Anne Smith testified that the reasons for Avery’s termination included the cell phone issue, the computer issue, and being on campus at odd times,” Hixon said. “This demonstrated that the school board considered reasons not contained in the notice in direct violation of the TFDA. That being so, we hold that the circuit court committed no error in declaring Avery’s termination void and in reinstating his employment contract.”