Yarbrough v. Camphor

For the Court:

This appeal arises from the February 26, 1991, Claiborne County Chancery Court judgment which. awarded Zhukov R. Camphor twenty-five thousand dollars ($25,-000.00) for being wrongfully discharged from his employment as Finance Director of the Claiborne County Public School District. The Board of Trustees for Claiborne County, Superintendent of Education of the Claiborne County Public School District, and the Claiborne County Public School District (hereinafter “Yarbrough”) appeal and assign as error the following:

I. The chancery court was manifestly wrong in its findings of fact and conclusions of law.

II. The chancery court misapplied the law to the facts of this case.

Finding no error on appeal, we affirm the lower court’s judgment.

STATEMENT OF THE FACTS

The minutes of the April 14, 1987 meeting of the Claiborne County Board of Education reveal that Zhukov Camphor was employed as a “Finance Director on a six (6) month probationary period with a salary of $25,-000.00 a year” pursuant to the recommendation of John C. Noble, Superintendent of the Claiborne County Public School District. Shortly thereafter, on April 30, 1987, Noble informed Camphor through written communication that, due to his insubordination, he. was suspended without pay effectively immediately. Noble informed Camphor that he could appeal the suspension in writing within five days. On May 1,1987, Camphor submitted in writing a request for a hearing before the Board of Education. On May 18, 1987, Noble communicated to Camphor that he was terminated from employment with the School District.

On May 20, 1987, the Claiborne County Board of Education reinstated Camphor as Finance Director without a hearing. On May 21, 1987, Noble again informed Camphor through a third letter that his employment with the School District was terminated and that he should remove his personal belongings from his office. Camphor alleged that on May 26, 1987 and July 31, 1987, he requested in writing a hearing before the Claiborne County School Board of Education. Although the May 26, 1987 letter did not appear in the record before us, the July 31, 1987 letter did. It addressed the fact that he was experiencing difficulty and resistance from Noble upon returning to work on May 21, 1987, after the Board’s reinstatement decision.

This saga continued when Camphor filed a complaint in the Chancery Court of Claiborne County on June 7, 1987 against Noble as Superintendent of the Claiborne County Public School District praying that the court issue a mandatory injunction restraining Noble from hindering the performance of his duties as Finance Director. Camphor claimed that, as a result of Noble’s actions, he had been denied due process of law since this termination was arbitrary, without cause and no hearing was provided. Camphor later amended his complaint and added the Board of Trustees of the Claiborne County Public Schools and the Claiborne County Public School District as defendants.

On September 17, 1987, Camphor filed a motion for a temporary restraining order, preliminary injunction and permanent injunction setting forth the same allegations. Camphor’s motion also revealed that Noble had executed a criminal affidavit and complaint against him upon which a warrant for his arrest was issued by the Justice Court of Claiborne County, and, as a result, on July 25,1987, he was convicted in justice court for disturbing the peace. The Chancery Court of Claiborne County granted a temporary restraining order but later denied the preliminary and permanent injunction request.

On October 22, 1987, School Board members filed a motion to dismiss arguing that Camphor was merely employed as a probationary employee for six months. They agreed that he was reinstated pursuant to the suspension imposed by Noble. However, the members argued that Camphor did not request a hearing nor receive one pursuant to his May 21, 1987 termination notice. Defendants claimed that Camphor had not exhausted his administrative remedies or afforded them an opportunity to review his situation by way of a hearing.

On December 8, 1987, the chancery court ordered that the School Board provide Camphor a hearing. On January 6, 1988, a hearing was held before Hearing Officer, Deborah A. McDonald, Attorney-at-Law. Ms. McDonald concluded that Camphor was a probationary employee and, therefore, could be terminated at will. It was not until July 6, 1988, that the Claiborne County Board of Education acted on the hearing officer’s findings and, for the first time, terminated Camphor.

On February 5, 1991, the Claiborne Chancery Court found, inter alia, that Camphor was hired as Finance Director at the salary of $25,000.00 per year. The court found that the suspension and termination of Camphor by Noble was without authority of law. The chancery court also ordered that the Claiborne County School Board set aside Camphor’s suspension and termination. The court further found that Camphor had been precluded from acting as Finance Director by the defendants and that Camphor never received his deserved salary, although he remained willing to resume the duties and obligations of his employment.

STANDARD OF REVIEW

When a trial judge sits without a jury, this Court will not disturb his factual determinations where there is substantial evidence in the record to support those findings. Omnibank of Mantee v. United Southern Bank, 607 So.2d 76, 82 (Miss.1992). “Put another way, this Court ought and generally will affirm a trial court sitting without a jury on a question of fact unless, based upon substantial evidence, the court must be manifestly wrong.” Tricon Metal v. Topp, 516 So.2d 236, 238 (Miss.1987); Brown v. Williams, 504 So.2d 1188, 1192 (Miss.1987). This Court must examine the entire record and accept:

that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court’s findings of fact, must be accepted.

Cotton v. McConnell, 435 So.2d 683, 685 (Miss.1983). Finally, when the trial judge sits as the finder of fact, he has the sole authority for determining the credibility of witnesses. Bryan v. Holzer, 589 So.2d 648 (Miss.1991); Bell v. Parker, 563 So.2d 594 (Miss.1990).

Issues of law presented on appeal, however, are afforded de novo review by this Court. Omnibank of Mantee, 607 So.2d at 83; Watts v. Pennington, 598 So.2d 1308, 1311 (Miss.1992); UHS-Qualicare v. Gulf Coast Community Hospital, 525 So.2d 746, 754 (Miss.1987).

DISCUSSION OF LAW

A. FINDINGS OF FACT

Yarbrough contends that the trial court erred in several of its factual findings. First, Yarbrough maintains that there is no evidence in the record to support the finding that Camphor entered into an employment contract with the School District. However, we do not require all employment contracts to be in writing and have so stated that, “[o]ral employment contracts for a definite term of less than fifteen months are wholly enforceable at law.” Short v. Columbus Rubber and Gasket Company, Inc., 535 So.2d 61, 64 (Miss.1988). See Eastline Corp. v. Marion Apartment, Ltd., 524 So.2d 582, 584 (Miss.1988); St. Louis Fire and Marine Insurance Co. v. Lewis, 230 So.2d 580, 582 (Miss.1970); Miss.Code Ann.Sec. 15-3-l(d) (1972). In Putt v. City of Corinth, 579 So.2d 534 (Miss. 1991), we held that the statute of frauds is satisfied as to the existence of a contract “so long as there is some memorandum or note thereof.” Putt, 579 So.2d at 538. Clearly, the April 14, 1987 minutes of the Board which employed Camphor as Finance Director for $25,000.00 per year satisfy this requirement.

Yarbrough argues that Camphor was merely a probationary employee for a six-month period as indicated in the minutes of the Board, and, likewise, Camphor admits that he was employed on a six month probationary period. There is no dispute that Camphor was hired as a probationary employee and, thus, could be terminated if his suitability for remaining employed was in question. The chancellor, however, never directly held that Camphor was not a probationary employee; he only found that he was employed at a salary of $25,000.00 per year. As this opinion reveals, the question of whether he was a probationary employee is of no relevance to the outcome of the case.

Thirdly, Yarbrough contends that the court was in error in finding that Noble did not have the authority to terminate Camphor from his employment. Camphor was recommended by Noble and employed pursuant to such recommendation. Mississippi Code Annotated § 37-9-3 (1972) states:

Within the limits of the available funds, the superintendent of schools or administrative superintendent of a school district shall recommend to the school board thereof all non-instructional employees to be employed and may prescribe the duties thereof. Compensation for such employees may be paid from any lawful funds.

The superintendent of a school district also may suspend or dismiss any certified employee for “incompetence, neglect of duty, immoral conduct, intemperance, ... or other good cause.” Miss.Code Ann. § 37-9-59 (1972). Camphor, on the other hand, was a non-instructional employee, which is defined as “all employees of school districts other than superintendents, principals and certificated employees.” Miss.Code Ann. Sec. 37-9-1 (1972).

In any event, it is Mississippi law that the actual authority and power to remove any employee rests with the School Board. In Tutwiler v. Jones, 394 So.2d 1346 (Miss.1981), we explained:

[I]f anything is clear, it is that the power ... remove district school employees for misconduct and to conduct hearings for that purpose has been completely withdrawn from that official [county superintendent] by the amended statute ... It is equally clear that the removal hearing is to be before the board of trustees, and the actual power to remove or not to remove rests with [the School Board].

Tutwiler, 394 So.2d at 1348 (emphasis added). Moreover, in Spradlin v. Board of Trustees of Pascagoula Municipal Separate School District, 515 So.2d 893 (Miss.1987), we stated the language “may remove” in § 37-9-59 applies to limited cases where the teacher does not request a hearing. Spradlin, 515 So.2d at 897. See Everett v. Board of Trustees, Meridian Municipal Schools, 492 So.2d 277, 281 (Miss.1986). Pursuant to the above, although a superintendent has the authority to suspend an employee, the ultimate power to terminate an employee lies with the school board.

Yarbrough next claims that there is absolutely no evidence in the pleadings that would support the finding that the School Board set aside Camphor’s termination. In the Board’s minutes, the language used only pertains to the suspension of Camphor, not the termination. The Board argues that it only considered Camphor’s suspension and the issue of Camphor’s termination was never before it during its May 20, 1987 meeting.

The chancellor, however, was not manifestly wrong in looking to the actual action taken by the Board after it was on notice that Noble by letter had attempted to terminate Camphor on May 18, 1987. In the minutes, the Board indicated that it had time to evaluate the “situation.” The Board then voted to “reinstate” Camphor as Finance Director and to put him “back to work.” It is clear that the Board considered the entire “situation” in determining, on May 20, 1987, to reinstate Camphor thereby, obviously, setting aside any attempt by Noble to suspend and/or terminate Camphor’s employment. Lastly, defendants claim that the lower court erred in its finding that they had precluded Camphor from performing his duties as Finance Director. Defendants contend that Camphor had already been terminated from the school district, and, therefore, he had no duties and responsibilities in light of his termination.

To the contrary, there exists substantial evidence that he was hindered from performing his duties. On the day after the Board reinstated Camphor, Noble sent him a letter purportedly terminating him from employment and advising him to remove his belongings. In addition, it is difficult to imagine any evidence that could more graphically illustrate Camphor’s troubles than the proof that on July 20,1987, Noble signed an affidavit which resulted in the arrest of Camphor for disturbing the peace. The basis for the warrant was Camphor’s “continually returning to the office” when told not to return. The chancellor was not in error in this finding. As this Court will not disturb a chancellor’s findings of fact where there exists substantial evidence in the record to sustain such findings, defendants’ arguments that the chancellor’s factual findings were erroneous fails.

B. CONCLUSIONS OF LAW

Yarbrough asserts that the chancellor was in error in concluding that Miss.Code Ann. § 37-7-301 (Supp.1990) gives the School Board the authority to employ and fix the duties and compensation of non-instructional personnel pursuant to the recommendation of the superintendent of schools since it conflicts with Miss.Code Ann. § 37-9-3 (Supp.1990).

Mississippi Code Ann. § 37-9-3 (Supp. 1990) supplies the Superintendent with the authority to recommend as well as prescribe the duties of those individuals recommended. The statute provides:

Within the limits of the available funds, the superintendent of schools or administrative superintendent of a school district shall recommend to the school board thereof all non-instructional employees to be employed and may prescribe the duties thereof. Compensation for such employees may be paid from any lawful funds.

Miss.Code Ann. § 37-9-3 (1972).

Keeping in mind that the above statute merely states that the Superintendent “may prescribe” duties of non-instructional employees, Miss.Code Ann. § 37-7-301 (Supp. 1990) gives the affirmative responsibility to employ persons to the School Board:

The school board of all school districts shall have the following powers, authority and duties in addition to all others imposed or granted by law, to wit:

(w) To employ and fix the duties and compensation of such ... non-instructional personnel deemed necessary pursuant to the recommendation of the superintendent of schools or the administrative superintendent.

Miss.Code Ann. § 37-7-301 (1972).

The question before this Court is what person or entity has the authority to employ and, in turn, the authority to fire non-instructional personnel. Yarbrough’s argument that these two statutes conflict is erroneous, but even so, in interpreting different sections of the Code involving the same subject matter, we have explained:

The controlling rule of construction dispos-itive of this case is that each section of the Code dealing with the same or • similar subject matter must be read in pan mate-ña and to the extent possible each section of the Code must be given effect so that the legislative intent can be determined.

Mississippi Public Service Commission v. Municipal Energy Agency of Mississippi, 463 So.2d 1056, 1058 (Miss.1985). See Wilbourn v. Hobson, 608 So.2d 1187, 1200 (Miss. 1992); Allgood v. Bradford, 473 So.2d 402, 411 (Miss.1985); Lamar County School Board of Lamar County v. Saul, 359 So.2d 350, 353 (Miss.1978). Moreover, we have stated:

It is a fundamental rule of statute construction that when two statutes encompass the same subject matter, one being general and the other specific, the latter will control. 1 Sutherland, Statutory Construction Section 2022 (3rd ed. 194,3).

McCrory v. State, 210 So.2d 877, 877-88 (Miss.1968).

Mississippi Code Ann. § 37-7-301 (1972) is more specific than Miss.Code Ann. § 37-9-3 (1972) since it explicitly grants the Board of Education the right to employ non-instructional employees. The chancellor, therefore, was not in error in concluding that the School Board has the authority to employ and fix the duties and compensation of non-instructional personnel.

In its conclusions of law, the Claiborne County Chancery Court held that defendants breached their contract of employment with Camphor because it was their duty to retain Camphor as Finance Director. Yarbrough contends that this conclusion of law is manifestly wrong since it is predicated upon facts that are not supported by the record.

Yarbrough argues that the Board never reversed the decision of Noble to terminate Camphor, and Camphor never asked for a hearing after the May 21, 1987 termination letter. Yarbrough’s argument that the Board never reversed Noble’s decision has no merit since Noble did not have the authority to make such a decision in the first place. Furthermore, contrary to Yarbrough, Camphor did on more than one occasion request, in writing, a hearing, and he orally did so on numerous other occasions. There is evidence of a July 31, 1987 letter in which Camphor asks the Board for assistance in clarifying the matter at hand. True, Camphor did have a probationary contract with the school board with a salary of $25,000.00 per year. However, this issue became moot since the Board did not terminate him until July of 1988, more than one year after the date on which he was employed by the Board. Accordingly, the chancellor was correct in this finding. Lastly, Yarbrough meritlessly asserts that Camphor is not entitled to a $25,000.00 judgment since he only asked for $11,500.00 in his amended complaint. However, what Camphor asked for was full back pay. Camphor was never paid for any work that he did as Finance Director, and it was not until July of 1988, over a year after the date he became employed, that the Board took appropriate measures to terminate him. At the time the amended complaint was filed the amount approximately owed to Camphor was $11,-500.00. Camphor is entitled to recover full pay, not merely the amount that had accrued prior to the filing of the amended complaint because he remained ready and willing to continue his duties as Finance Director during the entire year. It makes no difference that Camphor was only a probationary employee since he was never properly terminated.

Judging from the record, the Claiborne County Board of Education and other appellants deplorably ignored the duties that their jobs require. Clearly, the Board of Education is vested with not only the authority to terminate non-instruetional personnel but it is their responsibility too. The issue of whether he was merely a probationary employee is of no relevance to the outcome because Camphor was not terminated by the proper authority. The record indicates that Camphor on many occasions sought help from the Board to end this saga, and because the Board did nothing, Camphor is entitled to full back pay as he at all times stood ready to fulfill his position. The lower court’s judgment stands affirmed.

AFFIRMED.

HAWKINS, C.J., and SULLIVAN, JAMES L. ROBERTS, Jr. and SMITH, JJ., concur.

BANKS, J., dissents with separate written opinion joined by DAN M. LEE and PRATHER, P.JJ., and PITTMAN, J.