Opinion
[40 Ark.App. 165-A] David Soloman, Helena, for appellant.
R.S. McCullough, Little Rock, for appellee.
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
PER CURIAM.
Petition for rehearing is denied.
MAYFIELD, Judge, dissenting.
This court has today denied the appellee's petition for rehearing of our decision in Helena-West Helena School District v. Davis, 40 Ark.App. 161, 843 S.W.2d 873 (1992). The appellee was a school teacher in the appellant school district, but was terminated at the conclusion of a hearing held by the school board. Appellee appealed to circuit court and that court reversed the school board's decision on the finding that appellee was denied due process because he was not given the opportunity to cross-examine his accusers.
As our original opinion stated, the appellee was one of several chaperons on a field trip by 24 elementary students to Hot Springs. The school principal testified that he received a report from the parents of one of the girls that their daughter and another girl had been sexually molested by the appellee during the group's stay at a Hot Springs hotel.
During the hearing before the school board the appellee's attorney objected to the school principal testifying what a parent of one of the girls had told the principal. Counsel for appellee stated.
I realize this is not a judicial proceeding but we would object to him saying what they said to him as they chose not to appear here themselves, the parents. We feel that there was no reason for them not to be here.
Notwithstanding the objection, the principal gave a very detailed account of conversations he had with the parents of one of the girls and what he had told other people the parents had told him. And, although the school board's decision was appealed to circuit court where additional evidence was heard, the parents of the two girls did not appear and did not testify at the school board hearing or at [40 Ark.App. 165-B] the hearing before the circuit judge.
In reversing the school board's decision, the court relied upon a United States District Court decision in Casada v. Booneville School District No. 65, 686 F.Supp. 730 (W.D.Ark.1988). In that case, Judge Morris Sheppard Arnold said:
[T]he Eighth Circuit has held in a public employee discharge case that "[i]t is fundamental to a full and fair review required by the due process clause that a litigant have an opportunity to be confronted with all adverse evidence and to have the right to cross-examine available witnesses." Nevels v. Hanlon, 656 F.2d 372, 376 (8th Cir.1981). In our case, although plaintiff was confronted with the witnesses against him he was denied the right to cross-examination.
The opinion of this court which reversed the trial court's decision stated that, although the appellee did not have the opportunity to cross-examine the parents of the girls because of their absence, "he never objected to this fact." The objection which I have quoted above appears on page 54 of the transcript. The circuit judge found it sufficient to raise the due process question and reversed the school board's decision on that point. It is clear that it is not our function to substitute our judgment in these cases for the judgment of the circuit court. Allen v. Texarkana Public Schools, 303 Ark. 59, 794 S.W.2d 138 (1990); King v. Elkins Public Schools, 22 Ark.App. 52, 733 S.W.2d 417 (1987).
I would point out that I did not dissent from the original opinion in this case; however, I did agree with an opinion that "reluctantly" concurred in holding that the appellee "waived the right to confront and cross-examine the witnesses." I have now decided that our original decision was wrong. While neither of the girls appellee was accused of molesting testified in either hearing in this case, I do not find any objection to a lack of opportunity to confront and cross-examine the girls. This objection was made with reference to the parents, and considering the testimony as to what the parents of one of the girls said, given as first and second-hand hearsay, and the part those parents played in bringing the charges against the appellee--I now agree with the trial judge that the school board's decision should be reversed.
I am authorized to say that Rogers, J., would grant the Petition for Rehearing in this case but does not join in this opinion.