Barnes v. Spearfish School District No. 40-2

#24007-a-JKK

2006 SD 108

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

JEANNIE BARNES, Plaintiff and Appellant,

v.

SPEARFISH SCHOOL DISTRICT
NO. 40-2, Respondent and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA

* * * *

HONORABLE TIMOTHY R. JOHNS
Judge

* * * *

DENNIS W. FINCH of
Finch, Bettmann, Maks & Hogue, PC Attorneys for plaintiff
Rapid City, South Dakota and appellant.

ERIC JOHN NIES of
Hood & Nies, P.C. Attorneys for respondent
Spearfish, South Dakota and appellee.

* * * *

CONSIDERED ON BRIEFS
ON OCTOBER 2, 2006

OPINION FILED 11/29/06
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KONENKAMP, Justice

[¶1.] The Spearfish School District decided not to renew its teaching

contract with Jeannie Barnes for the 2004-05 school year based on her

insubordination, violation of district policy, and poor performance. At a hearing

before the Board, Barnes argued that the district failed to comply with Board Policy

4505 and did not have sufficient evidence to support a just cause termination as

required in SDCL 13-43-6.1. After the hearing, the Board issued its decision to non-

renew her contract. Her appeal to the circuit court was affirmed. She now appeals

to this Court, and we also affirm.

Background

[¶2.] Jeannie Barnes was an elementary school teacher in the Spearfish

School District for fourteen years. As required by district policy, Barnes was

evaluated annually by her supervising principal. In these evaluations, the principal

was required to either recommend her for continued employment or recommend

that her contract not be renewed for the next school year. For every contract term,

except the 2003-04 school year, the principal supervising Barnes recommended that

her employment be continued and her contract be renewed. However, on February

24, 2004, after Principal Paul Soriano evaluated her, he recommended that the

district not renew her contract for the 2004-05 school year. According to Soriano,

Barnes failed to meet the performance expectations established for her.

Specifically, Soriano recommended that just cause existed to not renew her contract

based on her “continued poor performance as it related to ineffective communication

with others; continued unsatisfactory response to supervision and suggestions for

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improvement; continued insubordination to me, your [p]rincipal; and continued

violation of Board Policy 4335, #8—‘Maintain effective working relationships with

colleagues.’”

[¶3.] Barnes received a copy of this evaluation and Soriano’s

recommendation. Superintendent David Peters notified her in a letter dated March

15, 2004, that the Spearfish School Board had preliminarily accepted the

recommendation not to renew her contract. Barnes requested a hearing before the

Board. She argued that there was not enough evidence of insubordination toward

her supervisors or a violation of district policies. She also alleged that the

administration failed to follow the procedural requirements in Board Policy 4505.

Policy 4505 mandates that the administration, before recommending that a

teacher’s contract not be renewed, provide the teacher with at least a minimum of

two conferences. One conference must occur on or before the end of the first

semester, and additional conferences may be held thereafter and into the next

semester. Also, the teacher must be informed in writing of the “basis and reason for

the supervision/evaluation” and receive suggested “remedial measures.”

[¶4.] After a four-day hearing, the Board ruled that the administration

complied with the requirements of policy 4505. It recognized that a conference was

held in September 2003, and the basis for the supervision and evaluation of Barnes

and her suggested remedial measures were reduced to writing. A second conference

was held in January 2004, with additional meetings between those two dates. In

regard to her further claims, the Board concluded that her

response to any attempt at supervision or suggestions for
improvement is completely unsatisfactory when considered on

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an objective basis. The aggressive, insolent, and occasionally
vindictive nature of her responses support a finding that the
Administration’s allegation [of insubordination] is fully
supported. Barnes’ relationship to two different supervisors, as
well as her attempted involvement of other employees in her
personnel issues, support a finding that Barnes violated
Spearfish Board Policy 4335, #8.

Based on this conclusion and many additional findings, the Board confirmed its

preliminary decision to non-renew her contract.

[¶5.] Barnes appealed the decision to the circuit court. She asserted that

the Board’s findings were clearly erroneous and the Board erred when it found the

administration complied with the requirements in policy 4505. The circuit court

affirmed the Board’s decision in its entirety. Barnes now appeals to this Court

asserting that the Spearfish School District (1) had no just cause under SDCL 13-

43-6.1 to non-renew her contract; (2) acted arbitrarily, capriciously, and in an abuse

of discretion when it non-renewed her contract; and (3) failed to comply with the

procedural requirements of Board Policy 4505.

Standard of Review

[¶6.] Our standard of review of a school board’s decision is well established:

School boards are creatures of the [L]egislature and the
judiciary may not interfere with their decisions unless the
decision is made contrary to law. Therefore, “[a]s 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

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determine whether the decision was arbitrary, capricious or an
abuse of discretion.

Hicks v. Gayville-Volin School District, 2003 SD 92, ¶10, 668 NW2d 69, 73 (quoting

Gauer v. Kadoka School Dist. No. 35-1, 2002 SD 73, ¶5, 647 NW2d 727, 730

(additional citations omitted)) (alterations in Gauer).

[¶7.] A school board’s decision is arbitrary or capricious when it is “founded

on prejudice or preference rather than on reason or fact” or “is contrary to the

evidence or established rules of law.” Black’s Law Dictionary (8thed 2004); see also

Pruchniak v. School Bd. of Elk Point-Jefferson School Dist. No. 61-7, 2004 SD 133,

¶6, 691 NW2d 298, 300; Johnson v. Lennox School Dist. No. 41-4, 2002 SD 89, ¶8,

649 NW2d 617, 621. Decision makers abuse their discretion only when they make

“‘a fundamental error of judgment, a choice outside the range of permissible choices,

a decision, which, on full consideration, is arbitrary or unreasonable.’” In re

Adoption of C.D.B., 2005 SD 115, ¶11, 706 NW2d 809, 814 (quoting Arneson v.

Arneson, 2003 SD 125, ¶14, 670 NW2d 904, 910).

Analysis and Decision

[¶8.] Barnes was a tenured teacher, having taught for more than four

consecutive terms of employment, and, under SDCL 13-43-6.1, the school district

may only non-renew her employment “for just cause, including breach of contract,

poor performance, incompetency, gross immorality, unprofessional conduct,

insubordination, neglect of duty, or the violation of any policy or regulation of the

school district.” (Emphasis added). Here, the basis of the district’s decision to non-

renew her contract was her “poor performance, unsatisfactory response to

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supervision and suggestions for improvement, insubordination, and violation of

Board Policy 4335, #8—‘Maintain effective working relationship with colleagues.’”

[¶9.] Barnes contends that the Board did not have “just cause” to non-renew

her contract. In particular, she claims the definition of insubordination used by the

Board is incomplete. The Board defined insubordination as “not submitting to

authority; disobedient.” Barnes would use the definition of insubordination from

the Sixth Edition of Black’s Law Dictionary: “refusal to obey some order which a

superior officer is entitled to give and have obeyed. The term imports a willful and

intentional disregard of the lawful and reasonable instructions of the employer.”

With this definition, she asserts that there is no evidence of her “willfully or

intentionally disregarding any instructions of her supervisors.”

[¶10.] The definition Barnes asks this Court to adopt is obsolete. She cites

the Sixth Edition of Black’s Law Dictionary, which has been twice updated and now

exists in its Eighth Edition. Black’s Law Dictionary now defines insubordination

as: “(1) A willful disregard of an employer’s instructions, esp. behavior that gives

the employer cause to terminate a worker’s employment. (2) An act of disobedience

to proper authority; esp., a refusal to obey an order that a superior officer is

authorized to give.” (8thed 2004). The definition of insubordination used by the

Board and accepted by the circuit court was adopted by this Court in Schroeder v.

Department of Social Services, 1996 SD 34, ¶10, 545 NW2d 223, 228, and restated

in Bad Wound v. Lakota Cmmty Homes, Inc., 1998 SD 25, ¶18, 576 NW2d 229, 232.

This definition is sufficient. Moreover, it is in accord with the second definition of

insubordination as stated in Black’s Law Dictionary (8thed 2004).

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[¶11.] Nonetheless, Barnes asserts that the Board’s finding that she was

insubordinate is clearly erroneous. She further argues that the Board’s decision

was arbitrary, capricious and an abuse of discretion. According to Barnes, there is

no evidence that she refused to obey any orders from her supervisors. Rather, she

contends that “[i]t is clear that what occurred here could probably best be described

as personality conflict between Barnes and Fridell and which carried over into

Soriano’s administration.” Further, she alleges that “[t]he conflict was precipitated

to some extent by [her] fear of Fridell wanting to ‘get rid of her’ and prompted her to

respond to many issues by written memos that were either authorized by or at least

suggested by [her] union representative.” These memos, according to Barnes, never

“rose to the level of insubordination as defined by law.”

[¶12.] During the four-day hearing, the Board heard testimony from Barnes;

Principals Paul Soriano and Hank Fridell; Dave Peters, the Spearfish School

District superintendent; Michael Brubaker, the South Dakota Education

Association representative for Barnes; Dave Jewett, the director of special services

for the district; Dr. Jim Hess, an expert in psychology; Karen Kisaack-Wilson, a

special education teacher who worked with Barnes; Kathryn Witt, a core teacher

who also worked with Barnes; Deb Balding, an aide in the classroom with Barnes;

and several parents of her students. The Board also received over seventy

documents into evidence regarding her evaluations, classroom performance, and

alleged communication deficiencies. In its findings and conclusions, the Board

identified and addressed each exhibit pertaining to her performance. Because the

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Board’s decision centers particularly on its review of the evidence, the exhibits in

the record are examined here in detail.

[¶13.] One of the first exhibits was the 1998 performance evaluation for

Barnes. Her principal at that time was Hank Fridell. When he evaluated her, he

checked “Meets Standards” for each of the areas assessed and then recommended

her for continued employment. However, in the comments section, he noted that he

had previous concerns about her communication problems with staff, but declared

that at this juncture, he “was not aware of any problems in this area.” He also

wrote that she was “selective in what she chooses to participate in with staff

development opportunities,” which “prevents her from making a larger impact

outside her classroom.” Ultimately, however, he concluded that she is “an excellent

teacher.”

[¶14.] When Fridell presented Barnes with his evaluation, she refused to sign

it. Even though he told her that it was “a positive and accurate reflection of her

work,” she disagreed with his comments about her communication problems and

selective participation. She submitted a written response specifically challenging

the basis for each comment, except his observation that she was an excellent

teacher. 1 The letter was included in her personnel file and three days later she

1. In her letter, she wrote that “some of the information in the evaluation does
not belong there.” According to Barnes, she did not know how to interpret a
comment Fridell made about her classroom “being a marked improvement
from last year.” If it was a problem before, she believed “the school district
had ownership of that problem.” In response to her alleged communication
problem, she stated, “I thought these issues were cleared up, and I don’t
appreciate having to deal with them again in my evaluation, especially since
it involved people reacting to hearsay.” As to her “selective participation,”
(continued . . .)
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signed the evaluation. The Board examined these documents and found that

Fridell’s evaluation was “positive,” the letter response from Barnes was

“confrontational in tone, [sought] to establish an adversarial relationship, and

exhibit[ed] a refusal to submit to supervision,” but Fridell’s response was “moderate

in tone and attempt[ed] to open lines of communications. . . .”

[¶15.] In 2000, Fridell drafted a memo to be included in her personnel file. It

documented the circumstances surrounding an incident where he requested that

she remove a couch from her classroom. The couch was considered a fire hazard.

Yet Barnes believed she should be able to keep it in her classroom. After the

custodians removed the couch from her room, she directed them to return it.

Thereafter, she talked to Fridell, who told her again that the couch needed to be

removed. She next talked to the superintendent, Dave Peters, who informed Fridell

of the conversation. Fridell again denied a request from Barnes to keep the couch,

and, in a memo, directed her to remove it, and if she did not, he would dispose of it.

Also, if she involved any employee in her attempt to keep the couch, Fridell told her

that he would consider it insubordination. The conclusion of the memo requested

that Barnes provide her signature. She refused. She was given a copy of the memo

on August 30, 2000, and Fridell documented the meeting in another memo, noting

her refusal to give her signature.

__________________
(. . . continued)
Barnes explained that because participation is voluntary, “this is outside the
bounds of a school evaluation.” Finally, she remarked, “If Mr. Fridell has
concerns regarding my performance, I would appreciate specific measurable
criteria by which my future performances will be adjudicated.”

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[¶16.] Barnes submitted a written response to Fridell’s memo, defending her

actions in keeping the couch and disagreeing with Fridell’s opinion that she acted

improperly or against his decision to have it removed. She further accused Fridell

of being “unfair, unprofessional, and not keeping with the goals of the school

district.” 2 The Board examined these documents and found that “Barnes

countermanded reasonable orders,” exhibiting “a refusal to submit to supervision.”

Also, her written response, according to the Board, was “insolent in tone and

represent[ed] a distorted view of the rights an employee has on non-public issues

relating to conduct of class and performance of duties.”

[¶17.] Barnes was again evaluated by Fridell in 2001. Unlike his 1998

evaluation, however, he did not check “Meets Standards” for all criteria. Instead,

he checked “Needs Improvement” under “Communicates clearly and effectively,”

“Responds to supervision and suggestions for improvement,” and “Commitments to

professional growth.” In his comments, Fridell set forth specific examples to

support his concerns and also listed what expectations he had for Barnes to improve

in these areas. Ultimately, he recommended Barnes for continued employment.

2. Barnes wrote in her letter,
It was my opinion, and I believe I am entitled to have my own opinion.
Are opinions valid only when they are agreeable to leadership? . . . I
think my opinion is compatible with the federal laws already in place. .
. . In my classroom I have to be open to different opinions and
encourage questioning. I hope that administrators are held to the
same standards. Please, don’t forget that the right to an opinion is a
first amendment right. . . . In a healthy environment, freedom of
opinions and discussion is not suppressed, but encouraged because it
creates a re-examination of everything that is held to be true and
promotes growth.

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When he provided her with a copy of the evaluation, she refused to sign it,

informing him that she would respond in writing.

[¶18.] In a letter, Barnes responded to each of Fridell’s examples and

comments. She disputed his belief that she needed improvement in the area of

communication, or that she failed to respond to supervision or suggestions for

improvement. Rather, she asserted that Fridell had failed to give her “specific

measurable objectives by which [her] future teaching performance [would] be

adjudicated.” She also stated that she has “tried to settle things informally as

witness[ed] by [her] detailed responses.” Barnes concluded her letter by stating, “I

am looking forward to a long career in the Spearfish School System, in an

environment that will become free from time consuming, frivolous and unethical

intimidations.” She attached to her letter the code of ethics for professional

administrators. The Board found that her letter was “defensive and insolent in

tone,” and “contain[ed] accusations of unethical and unprofessional activities on the

part of her supervisors without presenting the basis for her charges.” Further, it

concluded that she has a “distorted perception of the supervisory relationship

between an employer’s representative and an employee.” Fridell’s evaluation,

according to the Board, supported his “conclusions regarding Barnes’ need for

improvement in certain areas.”

[¶19.] In April 2001, Fridell received a complaint from a student’s parent.

The parent was concerned about a video Barnes showed in her classroom, entitled,

“Native Lands.” Fridell learned that Barnes showed the video to her third grade

class without personally viewing it beforehand. Although the video was part of the

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school’s library collection, Fridell believed that it had “vocabulary, concepts and

references to people and places” that were “well beyond third graders being able to

handle without a good deal of support.” Fridell concluded that Barnes, not having

reviewed the video first, “was unable to assist her students in understanding the

complex material, she was unable to judge the appropriateness of the material, and

she was not fulfilling her responsibilities as a teacher.” 3

[¶20.] In a meeting with Barnes, Fridell expressed his concerns. Barnes

would not concede that showing the video was a mistake. As a result, Fridell

drafted a letter of reprimand, outlining his concerns and specifically setting forth a

plan of action. In particular, Barnes would be required to give Fridell a copy of a

weekly written plan for instruction for the remainder of the school year. Fridell met

with Barnes to discuss the letter of reprimand and his plan of action. After he

began receiving lesson plans, the two began e-mailing each other to address each

other’s questions.

[¶21.] Barnes responded in writing to the entire situation, including Fridell’s

letter of reprimand. In a single-spaced, four and one-half page letter, Barnes

justified her decision to show “Native Lands” to her class, stating that she “thought

the video did a good job of explaining what civilization was and why they were

3. Specifically in regard to the video’s depiction of the formation of different
civilizations, Fridell stated,
The video’s depiction of cultures, myths and rituals was interesting, in
that the native cultures were shown in an artistic, dramatic dance
format, using masks and interesting landscapes. The depiction of
Adam and Eve, however, was done in a “Keystone Cops,” silent movie
style using a ridiculous set. As a result I found the approach to
compare “western” and “native” cultures had a built in bias.

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formed.” After explaining why showing the video did not deserve a reprimand,

Barnes stated, “[i]n the four years that Mr. Fridell has been my principal, this is

just one of many overblown and deceptive judgments on my tenure that Mr. Fridell

has used in his quest to get me fired or discouraged enough through reprisals to

quit.” The Board found that the tone of this letter was “insolent and

confrontational.” Also, the series of e-mails about her lesson plans, according to the

Board, were “indicative of Barnes’ argumentative attitude and totally unnecessary

attempted refutation of every suggestion or comment.” It further concluded that

Barnes “believes that being called to task for her mistakes is an injustice” and her

statements were evidence of her general refusal to submit to authority and of her

belief “that she has some voice in policy-making within the District.”

[¶22.] At the end of the year, Fridell evaluated her progress in the three

areas needing improvement from the previous evaluation. He determined that she

had failed to make sufficient progress and identified particular examples to support

his conclusions. He explained that her “approach to [his] supervision [was]

confrontational,” her “communication skills [were] ineffective in bringing about

needed improvement,” and her “commitment to growth [was] limited because [she]

has difficulty reflecting on mistakes [she has] made.” In this evaluation, Fridell

informed Barnes that he would be transferring to another building and would no

longer be her supervisor. However, he told her that he would suggest to the new

principal, Soriano, “that at the beginning of the school year, the two of you identify

a plan to address the areas needing improvement and that an evaluation be

completed next year to document progress in those areas.”

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[¶23.] Barnes responded to this evaluation with another letter. She declared

that she has “every right” to respond to her evaluations, there was “nothing

confrontational about making a request,” she “complied with the punishment of

doing detailed lesson plans,” and, in her opinion, “Mr. Fridell’s approach to

supervision has been to insult, intimidate, manufacture problems, and threaten to

fire me for four years.” She asserted that she has “responded within [her] rights,

stayed cordial in dealing with Mr. Fridell, documented with evidence, [and]

appealed for help. . . .” In recognition that Fridell would no longer be her

supervisor, Barnes “desired assurances in writing from Mr. Peters [the

superintendent], that Mr. Fridell will not be able to dictate that [she] be put on any

kind of plan for areas needing improvement at the beginning of the next school

year,” because “Mr. Soriano should judge for himself.” The Board found this letter

to be accusatory and attacking.

[¶24.] The following school year, 2001-02, Paul Soriano became her

supervisor. He, like Fridell, documented his meetings with Barnes. After one

particular meeting in October 2001, Soriano wrote a memo to Barnes clarifying his

responses to certain questions Barnes asked about teaching Spanish to her

students, extra recesses, and writing topics. After answering her questions, he

remarked, “two areas have been identified in which you, as an employee, must

improve (1) communicating clearly and effectively and (2) responding to supervision

and suggestions for improvement.” He informed her that he would continue to visit

with her “throughout this semester and next semester to discuss and evaluate [her]

performance” in the areas identified.

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[¶25.] On March 27, 2002, Soriano evaluated Barnes, assessing her progress

since their October meeting. He noted that since their meeting she had improved in

the area of “Responds to supervision and suggestions for improvement.” However,

he believed that she still needed to work on “Communicates clearly” because of his

concerns about her communication skills with him, the parents, and the students.

As support for his conclusions, Soriano attached a document containing specific

examples. 4 He then set forth five recommendations to Barnes for her to improve

her communication skills. 5 Barnes and Soriano signed the evaluation on April 3,

2002.

4. His examples were:
1. Letter of concern from Dr. and Mrs. M. regarding their daughter, M.M.
(10-22-01).
2. J.E. math situation (12-6-01).
3. Request for Professional Leave submitted 1-21-02.
4. Recess action in which a student was not allowed to come into the
building, thus, “wetting” himself. (1-30-02).
5. Restroom problem with boys and resulting e-mail response (3-7-02).
6. Letter of concern from Mr. & Mrs. O. regarding their daughter, J.O. (3-24-
02).
7. Confusion by Barnes with post-observation conference. E-mail sent 3-27-
02.

5. The following recommendations were included:
1. Explain classroom procedures, expectations, etc. clearly to students and
parents to minimize confusion.
2. Inform Principal of all parent meetings that may be of controversial
nature, so that he may attend if necessary.
3. Communicate professionally when submitting written communication to
the Principal.
4. If in doubt about school procedures, rules, practices, etc.; please visit with
the Principal for assistance.
5. If unsure about communication from the Principal, please visit with him
for clarification in a timely manner.

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[¶26.] Three days later, Barnes submitted a written response to the

evaluation. She disputed Soriano’s examples and justified her actions, asserting

that he did not have support for his concerns. She argued that he was attempting

to “build a case against” her by fabricating and stretching situations. She also

wrote, “the lack of support I have received on these concerns has been potentially

disrespectful and unprofessional. Even a criminal is innocent until proven guilty. I

feel Mr. Soriano’s communication with me has been, at times, condescending and

threatening. There is the communication problem.”6 The Board regarded her

response as “combative in tone, contain[ing] direct personal attacks on her

supervisor, and documents an unwillingness to submit to supervision.”

[¶27.] On May 3, 2002, Barnes, one of her student’s parents, and Soriano met

to discuss the parents’ concerns about their son. After the meeting, Soriano wrote a

memorandum to Barnes summarizing the substance of the meeting and identifying

areas he believed Barnes still needed to improve related to her communication

deficiency. He wrote, “Your responses, in my opinion, did not effectively and

6. Barnes spent another page explaining how she believed Soriano was
communicating poorly with her. She stated,
I want this potentially disrespectful and harassing behavior towards
me to stop. I would like to get a response back from Mr. Peters [the
superintendent]. I feel that I have exhausted all appeals to settle
things informally. I don’t think it is in the best interests of my
students, myself, East Elementary, Spearfish School District or the
community to show a blind eye to what is going on. Mr. Soriano told
me at the March 28th meeting if I responded to my evaluation in
writing it would show I had communication problems. I disagree. This
methodology offers me an opportunity to directly express my feelings
and not be misunderstood. I believe it is a right afforded to me in the
negotiated agreement. Would the administration deny me this right?

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positively address the heart of [the parents’] concerns.” According to Soriano, the

parents wanted to discuss their son’s relationship with Barnes, but Barnes

responded by discussing the student’s reading level information and academic

performance. Also, when Soriano and Barnes initially discussed the parents’ letter

of concern, he reiterated that she responded by stating, “they have a problem.”

Accordingly, he explained that “[i]t is important that [she] accept responsibility in

this relationship as well.” He then identified four areas for her “to become more

positive and effective in improving [her] communication.”7 Barnes replied in

writing, asserting that she is professional in her communications and that Soriano

should present “specific identifiable criteria by which [she] will be judged.”

[¶28.] On May 27, 2002, Soriano held an end-of-the-year meeting with

Barnes to discuss her progress in relation to her need to improve her

communication skills. In his memorandum summarizing the meeting, Soriano

stated that she still needs to improve her “communication skills with parents, staff,

students,” and him. As a result, he included a bulleted list of recommendations,

7. The specific areas Soriano suggested:
(1) “Accept responsibility in the processes of communicating and building
relationships with others.”
(2) “Work to understand what others are trying to communicate to you.
Sometimes people have difficulty communicating their true feelings to
others, we must encourage open and honest communication. If we don’t,
we are forced to ‘read between the lines.’”
(3) “Work to understand how your communication is being perceived by
others. What do your words, tone of voice, body language, eye contact, etc.
communicate? Is your communication perceived as being sincere,
empathic, and caring?”
(4) “Work towards the goal of a ‘win-win’ resolution to a problem. It takes
practice and focus to achieve this goal, but positive relationships are built
as a result.”

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which were previously set forth in the March 27 evaluation and combined with the

May 13 memorandum. He also indicated that they would meet again in August to

“discuss [her] written plan on how [she] will specifically address [his]

recommendations above.” Barnes responded by challenging his recommendations.

She restated each recommendation and then questioned what “criteria” would be

used for assessing her in that area. This response, according to the Board, was

“insolent in tone, and question[ed] the authority of Soriano as her supervisor.”

[¶29.] As planned, Soriano met with Barnes in August 2002 to discuss her

written plan. As indicated in the plan, its purpose was “to outline procedures and

seek available resources to assist [her] in addressing” the areas needing

improvement. He also informed her that it was his “role as her principal” to

“coordinate the effort of the resources and monitor progress.” Soriano would also

monitor and review the implementation of the plan weekly until February 15, 2003,

and “[o]n or before March 1, 2003, the degree to which [she has] successfully

addressed” the areas will be reviewed with her. Barnes, in a letter, challenged the

basis for Soriano’s expectations and demanded criteria by which she would be

assessed. In response, Soriano drafted another written plan, clarifying his

expectations, including more specific expectations and descriptions.

[¶30.] In September, Soriano became concerned with her behavior in talking

to other teachers about personnel issues. He met with her to discuss his concerns,

and, on September 9, 2002, he prepared a memorandum summarizing the meeting.

According to his memo, he indicated to Barnes that sharing information with other

staff members about personnel issues “contradicts [her] plan to improve in the area

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of communicating effectively.” He informed her that it was “inappropriate,

undermine[d] school authority, ha[d] a negative impact on staff morale, and must

stop.” Barnes responded in writing, asserting that Soriano made false accusations

against her. She declared that “[m]aking such malicious and inaccurate accusations

without the slightest degree of investigation is unprofessional and unethical. . . . I

believe Mr. Soriano undermines his own authority and imposes a low morale on the

teachers by his own inappropriate actions. . . .”8 She also challenged “the validity

8. Her letter continues,
These actions on Mr. Soriano’s part indicate no compliance of
working on a win-win situation. These constant meetings going over
my communications with a fine-tooth comb proves that this is a very
sad, personal, and vindictive situation that helps no one. The
blatantly untruthful allegations show the degree to which
administration, let alone educational, ethics have fallen. I realize all
my responses and requests for help with this situation have fallen on
deaf ears. . . .
There is a pattern here that began with Mr. Fridell and has
continued with Mr. Fridell’s surrogate, Mr. Soriano, with Mr. Fridell’s
continued active input. Perhaps another forum could objectively
analyze this pattern that has unfairly separated me from equitable
standards or even those standards used to judge my colleagues. Again,
I make an appeal for aid so that I might serve my students without
outside intimidation. If I do not find it here, I will seek it elsewhere to
the fullest extent that my rights allow.
As to the current “plan,” I believe evaluating people on potential
hearsay is not part of our district policy. To knowingly distort the
evaluation of an educator is unprofessional and unethical. . . .
I believe this current plan of Mr. Soriano’s is unjust and
inequitable. It is a sham. It was imposed by Mr. Soriano and
administered by Mr. Soriano. He is judge, jury, and shoot-from-the-hip
prosecutor. He means not to help me; he means to convict me. The
plan is vague and arbitrary because his standards are continually
interpreted, reinterpreted, and misinterpreted by Mr. Soriano, who is
determined to see me fail. I have continually asked for the constant
measurable standards by which I will be judged and have yet to receive
them.

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of the weekly meetings,” arguing that they were “meant to harass [her] and

interfere with [her] work.”

[¶31.] In response to this letter from Barnes, Soriano and Superintendent

Peters together issued her a letter of reprimand. It set out her performance

deficiencies, which had been previously identified as far back as May 2001. It also

noted that she has “intentionally and willfully failed to heed the warning or follow”

any of these performance expectations. In regard to her most recent written

response, the letter of reprimand indicated that her “accusations and threats [were]

highly inappropriate and unprofessional, and extremely serious.” Her conduct,

Soriano and Peters stated, “not only violate[d] performance expectations but also

fail[ed] to recognize commonly accepted employer-employee communication

standards and respect for supervision and authority.” They informed her that her

written response violated “School District Policy 4335, Section 8, to maintain

effective working relationships with colleagues, and Section 9, to follow the ethics of

the profession[.]” The letter of reprimand directed her to cease her insubordination

immediately. It then identified three directives, which would be added to her

written plan as performance expectations. 9 They warned her that her failure to

follow the directives could result in termination of her employment.

9. The three directives were:
Employer-Employee Communications.
...
You are hereby issued this final reprimand and performance
expectation with respect to employer-employee communications: any
further communication from you to your Principal or any other
administrator, or concerning these persons, containing language that
your Principal reasonably considers in his professional judgment to be
(continued . . .)
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[¶32.] Barnes responded in writing, thanking Soriano and Peters for meeting

with her and requesting clarification on certain points. As before, she questioned

what the criteria would be by which she would be assessed. She also denied that

her communications “contained any information or statements which were intended

to be ‘accusations and threats’ which are highly inappropriate and unprofessional,

and extremely serious.” Rather, she asserted that “these communications were

__________________
(. . . continued)
inappropriate or unprofessional within the employer-employee
relationship will be cause for your Principal to recommend your
discipline up to and including termination of your employment. Your
Principal set forth specific performance expectations in this area
almost a year ago in the attached memorandum, and you are required
to review them and abide by them. No further incidents such as the
September 10, 2002 memorandum will be tolerated.

Communication with others.
...
With regard to your failure to follow the clear performance expectation
that you not discuss your confidential personnel matters with other
school staff members, you are hereby issued this final reprimand and
performance expectation: Any further reports to your Principal by any
teacher or other staff member that you are discussing your confidential
personal matter with them which he first discussed with you and
asked you to keep private, with the expectation of the authorized SEA
representative, will be cause for investigation by administration and
maybe cause for your Principal to recommend your discipline up to and
including termination of your employment[.]
...
Weekly meetings.
It is inappropriate for you as an employee to question whether or not
your Principal will hold a meeting with you, or how often such
meetings occur, or whether such meetings are accomplishing a
particular goal established by your Principal. You did this very thing
in your September 10, 2002 memorandum. Your supervisors, past and
present, have identified and documented performance deficiencies in
the areas of communication for which performance expectations have
been established. Your Principal will determine whether and when a
performance expectation has been attained and to what degree.

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intended to seek additional information and to clarify what was being stated by the

district administration.” Moreover, she argued that she had not “participated in

activities that have been insubordinate to the Spearfish School District.” She

concluded by asking that she be given “specific measurable criteria by which [her]

performance will be adjudicated.” This particular response, according to the Board,

was “clear evidence of Barnes’ inability and unwillingness to take responsibility for

her own prior communications.”

[¶33.] When Barnes was evaluated the following March 2003, Soriano told

her that she had improved in her communication with students and parents.

However, he still had concern because she continued to exhibit a deficiency in her

communication with fellow staff members and administration. Therefore, in the

evaluation, Soriano restated the performance expectations that had been previously

established for her and also indicated her progress in relation to each expectation.

Barnes responded to this evaluation, in writing, explaining why his conclusions

were unwarranted.

[¶34.] In April, Soriano wrote a letter to Barnes because he was concerned

about her conduct in relation to the Business Fair. In this letter, he identified three

issues: (1) although informed of the proper procedures, she did not follow them as

directed; (2) instead of asking questions of her teaching team, she asked Soriano,

which to him exhibited her failure to accept responsibility in the communication

process and building relationships with others; and (3) when she filed a concern

about the Business Fair with the superintendent, this, according to Soriano, had a

negative impact on her teaching team’s morale. In response, she wrote a letter

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arguing that there were no problems with her communications in relation to the

Business Fair. According to Barnes, the “perceived problems [she has] according to

Soriano, are just that. If a specific person has a problem with [her], then that

person should be asked to come visit with [her]. [She] should not have to go on a

hunting expedition for a perceived problem with an unidentified source.” In

relation to the most recent letters submitted by Barnes, the Board found that she

continued to respond by “denying any possibility of improper behavior, attempting

to justify her actions and attacking her supervisor.”

[¶35.] At the end of the 2002-03 school year, Barnes received another formal

evaluation from Soriano. In this evaluation, he informed her that he still saw a

need for her to improve her communication skills. He summarized her performance

expectations in certain “communication areas,” which were the same as those

provided to her starting in October 2001, added to in March, May, July, and

September 2002, and included in the directives from her October 2002 letter of

reprimand. In each area, he noted whether she was “Improving,” “Needs

Improvement,” or “No Information.” He ended the evaluation by recommending her

for continued employment and stating that they would continue to meet regularly

beginning in the next school year.

[¶36.] At the beginning of the next school year, September 2003, Soriano met

with Barnes to discuss what he expected from her on improving her communication

skills. He provided her with a memorandum identifying the previously established

performance expectations. He also informed her that they would continue to meet

during the 2003-04 school year to discuss her progress. She acknowledged this

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memorandum by signing it on September 22, 2003. Soriano and Barnes met again

on January 27, 2004, regarding the “Monthly Meeting and Continued Concerns.”

Soriano, in his memorandum summarizing the meeting, set forth the same

performance expectations identified previously, and then stated his concerns in

regard to some of the expectations. He did not go into detail, but instead, included a

simple notation under the subject matter that concerned him. In response to this

memorandum, Barnes wrote a letter justifying her behavior in relation to each

concern.

[¶37.] On February 24, 2004, Soriano formally evaluated Barnes. In this

evaluation, Soriano concluded that she should not be recommended for continued

employment. A witness signed the evaluation confirming that Barnes received a

copy on February 24, 2004. The copy of the evaluation with her signature bears the

date, March 2, 2004. In deciding that she should not continue her employment,

Soriano remarked that Barnes had not met the performance expectations that were

“established to help [her] improve [her] communication skills [that] have been

documented for [her] through monthly meetings” with him “over the past three

years, which include continued performance deficiencies.” Specifically, he did not

recommend her because of her “continued poor performance as it related to

ineffective communication with others; continued unsatisfactory response to

supervision and suggestions for improvement; continued insubordination [to her

principal]; and continued violation of Board Policy 4335, #8—‘Maintain effective

working relationships with colleagues.’” Soriano identified for Barnes particular

instances of poor performance in regard to each performance expectation.

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[¶38.] In answer to the Board’s findings on her various written responses,

Barnes now contends that she merely “asked a lot of questions” and drafted “very

detailed” memos to her supervisors. She insists that her conduct “was within her

right to defend herself and raise questions” and did not rise to the level of

insubordination. The Board, through ninety-six findings of fact, examined the

parties’ exhibits and evaluated the substance and credibility of the testimony

offered. It concluded that “Barnes’ confrontational approach to supervisors invited

escalation in response and evidenced a pattern of refusal to submit to authority, and

is, thus, insubordinate.” Also, her “unsupported belief that she is in control of her

curriculum and classroom methods constitutes disobedience, and is, thus,

insubordinate.” The Board did, however, reject the administration’s “assertion that

Barnes exhibits ‘poor performance’ in teaching” as a basis for her non-renewal.

Nonetheless, it held that “when considered in conjunction with her attempts to

undermine her supervisor’s authority and foment disruption among staff members

regarding personnel issues, her total performance as an employee in the [d]istrict

falls short of board expectations.”

[¶39.] Based on our review of the evidence we cannot say that the Board’s

findings are clearly erroneous. Furthermore, the Board properly applied this

Court’s definition of insubordination, and the evidence clearly supports the Board’s

conclusion that Barnes did not submit to authority and was disobedient.

Accordingly, the Board’s detailed decision setting forth the basis for non-renewing

her contract was not arbitrary, capricious, or an abuse of discretion.

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[¶40.] Barnes presents one last issue on appeal: did the district fail to comply

with Board Policy 4505? Policy 4505 states in part:

Before a teacher or administrator is given the evaluation, “not
recommended for employment,” the supervisor conducting the
supervision evaluation will have a minimum of two conferences
with the teacher or administrator relative to the areas of
weakness. The first of these conferences shall be held on or
before the end of the first semester. Additional conferences may
be held during the second semester if the situation merits
additional conferences. The basis and reason for the
supervision/evaluation will be discussed and remedial measures
suggested to the teacher or administrator in writing.

She argues that the only “conference resulting in a written suggestion of ‘remedial

measures’ as required by policy 4505 is shown in a January 27, 2004 memo to [her]

from Soriano.” The district, however, contends that Barnes received her first

conference in September 2003, evidenced by the memorandum summarizing their

meeting and detailing “13 specific performance expectations and suggestions for

improvement.”

[¶41.] “[S]chool board policies have the force of law and must be complied

with.” Hicks, 2003 SD 92, ¶30, 668 NW2d at 77 (citing Iversen v. Wall Bd. of Educ.

(Iversen II), 524 NW2d 624, 628 (SD 1994); Schnabel v. Alcester School District No.

61-1, 295 NW2d 340, 341 (SD 1980)). Because Barnes concedes that she received

one conference in January 2004, where remedial measures were provided, we need

only decide if she was provided with a conference, “on or before the end of the first

semester” and whether as a result of that conference remedial measures were

provided in writing. Policy 4505 does not define what constitutes a “conference.”

However, in light of the context in which “conference” is used throughout the text of

the policy, we conclude that a conference is akin to a meeting. Therefore, we

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examine the record for evidence that Soriano met with Barnes “on or before the end

of the first semester” and whether the “basis and reason for the

supervision/evaluation [was] discussed and remedial measures [were] suggested to

[her] in writing.”

[¶42.] At the hearing before the Board, Soriano testified that in September

2003, he met with Barnes and discussed with her his expectations related to her

continued need to improve her communication skills. He then summarized their

meeting in his September 22, 2003 memorandum. In this memorandum, Soriano

refers to his May 28, 2003 memorandum, where he indicated that he and Barnes

were to meet at the beginning of the 2003-04 school year. His memorandum also

includes a list of performance expectations, which, according to Soriano, were to

assist Barnes in improving her communication skills with others.

[¶43.] Soriano’s September meeting with Barnes, in which they discussed her

continued need to improve her communication skills, established the basis and

reason for her evaluation and constitutes a conference that occurred “on or before

the end of the first semester” as required by policy 4505. Moreover, although

Soriano did not use the term “remedial measures” in his memorandum, the

suggestions listed by him satisfy the requirements of policy 4504. The thirteen

suggestions, if followed by Barnes, clearly would have assisted her in remedying her

communication deficiency. 10 Moreover, the same suggestions were restated in the

10. The memorandum states,
A. Visit with your Principal in person, not through memos and e-mails
when you need clarification, discussion, guidance, etc.
B. Be positive and professional in your communications with others.
(continued . . .)
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January 27 memorandum, which Barnes concedes amounted to remedial measures.

She was aware of what Soriano meant with each performance expectation, as the

September 22 and January 27 expectations were identical to those Soriano provided

__________________
(. . . continued)
C. Adhere to board Policy 4335 #8 – “Maintain effective working
relationships with colleagues.”
D. Acquire and internalize resources that deal with building and
maintaining effective employer-employee relationships.
E. Explain classroom procedures, expectations, etc. clearly to students
and parents to minimize confusion.
F. Inform Principal of all parent meetings that may be of a controversial
nature, so that he may attend if necessary.
G. Communicate professionally when submitting written communications
to the Principal.
2003-04 Signature Page dated 9/5/03.
H. If in doubt about school procedures, rules, practices, etc., please visit
with the Principal for assistance.
I. If unsure about communication from Principal, please visit with him
for clarification in a timely manner.
J. Accept responsibility in the processes of communication and building
relationships with others.
K. Work to understand what others are trying to communicate to you;
work to understand how your communication is being perceived by
others; work towards the goal of a ‘win-win’ resolution to a problem or
issue.
L. Employer-Employee Communications: “Any further communication
from you to your Principal or any other administrator, or concerning
these persons, containing language that your Principal reasonably
considers in his professional judgment to be inappropriate or
unprofessional within the employer-employee relationship will be
cause for your Principal to recommend your discipline up to and
including termination of your employment.”
M. Communication with Others: “Any further reports to your Principal by
any teacher or other staff member that you are discussing your
confidential personal matters with them which he first discussed with
you and asked you to keep private, with the expectation of the
authorized SEA representative, will be cause for investigation by
administration and maybe cause for your Principal to recommend your
discipline up to and including termination of your employment[.]

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to her during the previous two years. Therefore, the Board did not err when it held

that policy 4505 was followed.

[¶44.] Affirmed.

[¶45.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and

MEIERHENRY, Justices, concur.

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