Arlo Looking Cloud Lakota Perspectives
Lakota Wawokiya Civil Rights Organization
IN THE SUPREME COURT
STATE OF
Supreme Court No. 20080071
Northeast Judicial District,
JANIS SCHMIDT,
Petitioner and Appellant
VS.
Respondent and Appellee
and
Respondent and Appellee
ON APPEAL FROM A MEMORANDUM OPINION AND ORDER
Northeast Judicial District,
The Honorable Donovan Foughty
APPEALS BRIEF
JANIS SCHMIDT
Janis Schmidt,
Appellant, pro se
Phone 701-294-2196
ISSUES PRESENTED
STATEMENT OF THE CASE
On
I filed for unemployment benefits on
I timely appealed the determination denying benefits on
A hearing was held telephonically on
I appealed Job Service decision for Bureau Review. (Docket #1) Bureau denied review and upheld Job Service decision. (Id, #3) On
The District Court issued an Order affirming Job Sevice decision,
SUMMARY OF FACTS
On
In late September, 2006, Miranda Horse, announced during 9th grade art class, that she had been raped just before school started, and that school administration had done nothing about it. She said she tried to hang herself. I asked if she had reported this to the school. She said she had, but Mr. Reidinger told her not to talk about it. I reported this to Mr. Reidinger and Mr. Guthrie, as I know I have a duty to report. They already knew about the rape and suicide attempt. They assured me I had done the right thing, consider it reported, and they were taking care of it. (Id, p. 146, line 4-16) Shortly thereafter, Mr. Reidinger expelled Miranda. Miranda was still listed as enrolled. When I asked Mr. Guthrie about Miranda, he told me Miranda was on an IEP and she could not be expelled. He said she was being home schooled. (Id, p. 145-147)
Mr. Reidinger insisted that I call him to discipline the 7th graders. (Id, p. 150, line 1-3) He would not allow me to apply my own method of discipline. (Record, p. 158) Mr. Reidinger removed students from my class without any discussion with me, punishing students with detention and threats of police if they continued to show liking and support for me. (Ex 12, 7th Grader Statements, p. 305-313) When I complained to Mr. Guthrie, he told me that “it’s the Principal’s job to transfer students in and out of class. (Record, p. 149)
Jami Jetty, a new student, enrolled in both of my 7th grade classes, told me that something, possibly sexual, happened to her at a party. I told Ms. Toikison, the counselor, and asked her to talk with the girl. Instead, she reported to Mr. Guthrie, who then claimed Jami was the rape victim that I had reported to authorities. (Record, p. 147-148)
On
On or about December 27, Selina Horse, Miranda's mother told me her daughter had been expelled without a hearing, that Miranda was not being home schooled. (Record, Ex 14, Affidavit of Selina Horse, p. 317-319) I reported to proper authorities, what I had been told about the rape. I contacted James Jetty, who contacted a lawyer to find out why Jami had been questioned by Mr. Riedinger and Mr. Michels, that she had been raped, and why he had not been notified.
On
At about , Mr. Guthrie called and told me to report to his office the next morning, instead of going to my class.
On
I responded to the 3 reasons with a letter.
On
On
On
On
On
Mr. Guthrie tried to get me to take medical leave for rest of year. I called Janet Welk, Standard and Practices Board, who says if I do, that would be fraud and advised against it. I told Mr. Guthrie next day, I plan on teaching out my contract.
On April 5th, I submited a complaint to ND Standards and Practices Board. I wrote a letter to the Sheriff to inform him of Mr. Riedinger’s bizarre behavior, that children were being threatened. I informed Mr. Guthrie I had done so.
On
SUMMARY OF ARGUMENT
The Hearing officer prevented any of my facts from becoming part of the record. My problems started after I reported a felony crime of rape, which had not been reported. As a result, Mr. Guthrie, and principal Mr. Riedinger, both of whom should have reported the rape, but did not, retaliated by, among other things, giving me a bad review. On January 4th, I was fired when Mr. Guthrie was confronted with an angry parent and his attorney. I was reinstated on the condition I obey 5 directives. Mr. Guthrie admitted under testimony that I followed all 5 directives. Therefore, the Hearing Officer erred that I committed misconduct. Moveover, no date of my firing was ever established; any firing date they try to choose, doesn’t work. The employer claims I was nonrenewed as a reason for why I am no longer working. Nonrenewal is not a firing. The discharge hearing was done improperly. Misconduct cannot be determined by a claims taker or an appeals referee, but has to be assigned at the time of firing by the school board. I was eventually illegally fired, without hearing or due process, before the end of my contract. I was not informed I had been fired for misconduct. No appeal or reconsideration rights were spelled out. The unemployment decision was based on hearsay facts, contrary to
ARGUMENT
STANDARD OF REVIEW for unemployment benefit decisions has been summarized in Hulse v. Job Service North Dakota, 492 N.W.2d 604, 606 (N.D. 1992) :
"[W]hen an administrative agency decision is appealed to this court from a district court, we review the final decision of the agency and not that of the district court." . . . Our review of a mixed question of fact and law involves a determination of whether the evidence supports the agency's findings of fact and, in turn, whether those findings of fact sustain the agency's conclusion . . . . If confronted with disputed facts, we defer to the agency's factual conclusions and consider only whether a reasoning mind could have reasonably determined that the factual conclusions were proved by a preponderance of the evidence…. The primary objective is tempered by a competing objective, declared at section 52-06-02, of protecting employers "from quits that have nothing to do with the employer or the employment," and from dismissals based upon employee "misconduct."
I. The intake Separation facts were inaccurately recorded by Job Service; Job Service referee refused to accept Ms. Schmidt’s version of facts; therefore Job Service based its decision on false findings of fact.
Unemployment Insurance Appeal Information bulletin provided by Job Service to claimants to aid them in their appeal, states:
“This hearing is your opportunity to provide your information in this matter. The decision made based on this hearing … could affect unemployment insurance benefits….
Hearings are normally conducted in an organized manner, but are informal…. An appeals referee will conduct the hearing. The referee will make every effort to help you provide your information and obtain the facts….
The referee will be asking questions designed to bring out the basic facts surrounding the issue.” (Record, UI Appeals Bulletin, p. 54)
The facts are the basis for the decision. Job Service did not truthfully present my facts. The Claims taker did not correctly record my facts. In reference to the first firing on
Job Service based its determination, in part, that I was ineligible for benefits based upon the Claims Taker’s misrepresentation of my fact of why I was fired. Mr. Clinton, appeals referee, did not clarify this error. Mr. Clinton based his decision upon this false conclusion of the Claims Taker, and even stated so.
MR. CLINTON: …..a Determination dated July 17, 2007, that Determination held that Ms. Schmidt was discharged for failing to comply with instructions or directions from her employer and according to the information in the record, the Deputy determined that she was discharged for reasons that constitute misconduct and as a result she was disqualified from receiving Unemployment Insurance benefits. That is the issue that we will address in the hearing: Why is Janis Schmidt no longer employed by
MR. CLINTON: .....”I will take official notice of the
Mr. Clinton refused my objection that the Nonmonetary Determination facts and conclusions were not my facts.
MR. CLINTON: The statements entered by the Claims Representative on your behalf, are they true and accurate as entered? (Record hearing, p. 80, line 2-3)
MS. SCHMIDT: For my dismissal you mean? No, they are not. (Id, line 4)
The Job Service has based a decision on false facts established in the Nonmonetary Determination which the hearing officer refused to elucidate or correct; therefore the hearing officer did not base his decision on all the facts as required by law, NDCC 28-32-46. Mr. Clinton did not strike any balance between the rights of the employer and employee. The circumstances of my case were not properly examined in the agency hearing. No balance was struck that would favor me, the employee. I was not fairly adjudged guilty of misconduct and required by the provisions of section 52-06-02 of North Dakota Century Code. Consequently the clear meaning of the language contained in NDCC’s definition of misconduct was not applied in my case, and manifest injustice has occurred because I have been unjustly labeled with misconduct. For a teacher, that means I will never teach again.
II. The referee erroneously ignored evidence that the employer discharged Ms. Schmidt in retaliation for reporting that a student stated during class that she had been raped.
I clearly had a duty to report what a student had told me in class, that she had been raped. Mr. Guthrie had a duty to report when he learned of it. Mr. Guthrie failed to report, as he has admitted, “It happened during the summer which is was fully investigated by the police and had nothing to do with the school.” (Record, p. 107, line 8-11)
Mr. Clinton’s first responsibility was to find out “Why is Janis Schmidt no longer employed by
I offer 7 pages of testimony that reveal that Mr. Guthrie admitted he knew about the rape of Miranda, that Miranda was expelled, that the FBI called the school to inquire about an unreported rape, that Jami Jetty was set up to replace Miranda. The testimony reveals that Mr. Guthrie lied under oath when he claimed not to have any knowledge of Miranda or that she had been raped. He lied when he said I reported to him that Jami Jetty had been raped. (Id, p. 107, line 8-11) Mr. Clinton refused to consider retaliation for having reported a rape, as the reason for my dismissal. (Record, p. 105-115)(see Addendum C)
MR. CLINTON: Mr. Bachrach, I’m not even going there. That’s the point of the issue I’m take it off the table because she knows and I know—I understand from her writings that she couldn’t have been fired with that regard. Even if you’re told to go home when you have a contractual right, when you have a contractual right not be be nonrenewed, that’s not gonna constitute a fireing or and if it is, then it is re’employed, and I’m still looking at the same thing that I was looking at before and that is conduct after those directives were issued up to the time of the Notice of Termination. I think Mr. Thunbe is correct. I allowed some leeway here, I think that was sufficient, so let’s go back and lets turn to those, particularly to the issue of the claimant’s compliance with the directives that were given to her on
Mr. Guthrie fired me the first time, and the second time, because I reported to authorities, that a student had told me in class, that she had been raped, and that she had tried to commit suicide. (Id, p. 146, line 4-11) Mr. Riedinger, the high school principal expelled Miranda instead of reporting the rape. (Id, p. 109, line 19-21)
Mr. Guthrie’s 3 reasons for my dismissal are his pretextual reasons as to why I am no longer working. Mr. Clinton ignored my facts that a felony crime has taken place, and that Mr. Guthrie had not reported as required by law. Not reporting a rape to proper authorities can be defined as conduct evincing willful or wanton disregard of Warwick School Board’s interest in education and the student who was raped and then expelled by Mr. Riedinger and Mr. Guthrie. Mr. Guthrie, choosing to ignore that a rape happened to one of
MR. CLINTON: Once again, and for a timeline Mr. Guthrie, what I’d like to do is find those events and I know you couldn’t recall some of them, but see if they occurred between the January 5, which I will kind of consider, kind of the first fire here, because that’s when you sit down. She gets the half day to discuss those things. She’s given a Directive. I then want to move on from that, you know, so, in terms of what happens after that Directive and then up to the Notice of Nonrenewal. If we’re gonna tie these things together, understand , Mr. Bachrach? Please proceed. (Id, p. 112, line 15-21)
The referee erroneously ignored the pre-textual bases upon which the employer discharged Ms. Schmidt, and condescendingly told my out-of-state attorney, Mr. Bachrach, that he was to focus on the Directives and Notice of Nonrenewal, instead of the unreported rape. The provisions of NDCC 28-32-46 have not been complied with in the proceedings before the agency. Mr. Clinton refused to allow my side of the story. He ignored the fact that I reported a raped that had been unreported, and was retaliated against.
This capricious ruling by the appeals referee, effectively eliminated rape and sexual abuse from the facts, and violates the agency's rules of procedure, Appeal Information stated in NDCC 4042 (R 6-06): “This hearing is your opportunity to provide your information in this matter...The referee will make every effort to help you provide your information and obtain the facts.” (Record, p. 54) Instead, the referee limited the hearing to favor the employer's facts and prevented me from providing my side of the story, in violation of NDCC 28-32-46.
III. Guthrie Admitted I Followed the Five Directives Which Were the Purported Basis For the Nonmonetary Determination.
To support the decision of Misconduct, Job Service hearing officer erroneously found that I violated directives given on
The 5 directives were given to me by Mr. Guthrie as as condition that I do not talk about a rape that had been reported to me by a student, that he had expelled. I had just been fired,
Directives
1. No contact, per parent's request, with Jami Jetty or her parents.
2. Do not discuss matters such as you administrative leave with students during school time.
3. Teach what you have been hired to teach. Issues not pertaining to the curriculum are not to be discussed during school time.
Reason: Students have been dropping your class because they are uncomfortable with your constant discussions about Native American issues that are not a part of your curriculum, such as: Leonard Peltier,
4. You will follow the chain of command policy, a copy of which is attached.
5. Do not make allegations that you cannot prove.
Example: Making false allegations against administrators and counselor concerning a student rape which had been denied by the student and her parents.
These 5 Directives were given to prevent me from talking about a crime which Mr. Riedinger and Mr. Guthrie had not reported, their subsequent expelling of the rape victim, set up of Jami Jetty, and other student abuse, and as such, is extortion. It can be viewed as an order not to report a rape as mandated by law. I was essentially told that I had to agree to these 5 Directives or I would not be allowed to teach the rest of my contract. I was coerced to follow these directives, which was to agree to disobey the law. The false evidence was placed in my permanent file, and then this false evidence will become the basis of my misconduct.
(Record, Decision, p. 344) “In this case, the greater weight of the evidence in the record gives rise to a determination that the claimant deliberately violated a standard that she knew, or should have known, would result in the termination of her employment by deliberately failing to comply with directions or instructions from her employer….Indeed, the information that was supplied by the claimant herself in her letters and memorandums demonstrate that the claimant was insolent and unwilling to yield to the reasonable directives of the employer.”
I argued in my Appeals Brief that I followed all 5 directives. Mr. Guthrie admitted that he had no evidence that I did not comply to his 5 directives. No, I did not agree with his 5 directives, and I argued with him about it, but even though I felt I was being set up through and by these 5 directives, Mr. Guthrie was my supervisor, and I had to follow the directives, and I did, against my better judgment. Mr. Guthrie told me, in the presence of 3 witnesses, that I had to agree to the 5 directives or not be reinstated in my classroom. Mr. Guthrie, exhibited willful and wanton disregard of
MR. GUTHRIE: Ms. Schmidt had talked about a student or students being raped at the school and claiming that nothing had been done and in fact, the rape that she was talking about happened during the summer time, and that was followed up on...(Record, p. 88, line 1-3)
N.D.C.C. 50-25.1-03 states that the administrator shall report when he learns of the rape; it does not state “someone else is taking care of it.” It was careless, negligent and illegal for Mr. Guthrie to assume the rape of one of his students was “followed up on.” Not to have informed the school board of the precise facts in this matter was wrongful intent with evil design, showing an intentional and substantial disregard of Warwick School’s interests, and Mr. Guthrie did abysmally, intentionally, and substantially disregarded Warwick School’s interests, the student’s education, safety and well-being, and the teacher’s career. He then abused another student, Jami Jetty, by setting her up to take the place of the expelled rape victim. One could say this was a total failure of Mr. Guthrie in his duties and obligations to his employer,
Since the Appeals Referee was basing the misconduct on whether or not I followed the 5 directives, where's the misconduct? The referee erroneously concluded that the 5 directives mandated by Mr. Guthrie were prescribed standard of behavior of which Ms. Schmidt should obey, instead of a foil to conceal a felony crime.
It appears that the lack of favorable evidence at the hearing concerning when I was discharged, why I was discharged, and why I am no longer working, can be traced to the appeals referee, Mr. Clinton, who insisted that only testimony in the time frame between January 5 and March 28, 2007, would be considered for purposes of misconduct, which violates
Mr. Clinton arbitrarily and capriciously limited testimony to fit the time frame of the employer at the exclusion of my facts and my side of the story, further violations of NDCC 28-32-46. Mr. Guthrie and Mr. Thune are claiming that my conduct amounted to insubordination which Mr. Thune wishes this court to believe, constitutes misconduct, which this court is supposed to take on faith, because they have not provided one shred of evidence to prove insubordination, much less misconduct. In fact, the only one who demonstrated insubordination is Mr. Guthrie by refusing to answer questions concerning the rape of a student, and insisting that my attorney, Mr. Bachrach, only ask questions about Guthrie’s contrived reasons for why my contract was nonrenewed, within a contrived time frame that omits the felony rape and subsequent expulsion of the student who had reported to her art teacher that she had been raped.
MR. BACHRACH: Okay, thank you. [Mr. Bachrach was forced to comply with
…..MR. CLINTON: Mr. Bachrach, I’m not even going there. That’s the point of the issue. I’m gonna take it off the table because she [Ms. Schmidt] knows and I know, I understand from her writings that she couldn’t have been fired with that regard. Even if you’re told to go home when you have a contractual right…not to be nonrenewed, that’s not gonna constitute a firing or if it is then it is reemployed, and I’m still looking at the same thing that I was looking at before and that is conduct after those [5] directives were issued up to the Notice of Termination. I think Mr. Thune is correct. I allowed some leeway here; I think that was sufficient, so let’s go back and let’s turn to those, particularly to the issue of the claimant’s compliance with the directives that were given to her on
Mr. Clinton is mandated by NDCC 32-28-46 to afford me due process and a fair hearing. Mr. Clinton actually prevented my attorney from testing the 5 Directives. I was never given prior notice of termination, nor was I given any reason for my termination, nor was I told who were the witnesses who testified against me, nor was I given any opportunity to respond. This is not only unfair and in violation of ND law, it is unconstitutional, as stated in Frohlich v. North Dakota Workers Compensation Bureau, 556 N.W.2d 297, 301 (N.D. 1996), "due process requires the Bureau to give a claimant prior notice of termination of disability benefits, a summary of the medical evidence supporting termination, and an opportunity to respond." Frohlich at 301.
V. The referee failed to establish Ms. Schmidt’s last day of employment, as required by Unemployment Law in determining Nonmonetary reasons for ineligibility for benefits.
It s the duty of the Hearing Officer to bring out the facts of the employee as well as those of the employer. When determining eligibility for unemployment benefits, Job Service must first decide whether the employee quit or was fired. An employee who voluntarily leaves is ineligible unless the employee shows good cause attributable to the employer.
MR. CLINTON: Mr. Guthrie, she wasn't fired during the Notice of Nonrenewal, she's not fired on August (sic April?) 12th; she's placed on Administrative Leave with full pay. Tell me, was she fired? (Id, p. 99, line 12-14)
MR. GUTHRIE: Was she fired? She was nonrenewed. (Id, line 15)
MR. CLINTON: But you said that's not a firing. (Id, line 16)
MR. GUTHRIE: Well, it's not classified as firing; it's classified as a nonrenewal of a contract. (Id, line 17, 18)
MR. CLINTON: Well, exactly. So, when was she discharged? Cuz I need a date, Sir. (Id, line 19)
MR. GUTHRIE: Actually, when she was placed on Administrative Leave she wasn't fired, she was just placed on Administrative Leave with full pay. Her actual discharge date would have been the last day of school. (Id, line 20-22)
MR. CLINTON: When is she told she's fired? (Id, line 23)
MR. GUTHRIE: When was she told she was fired? (Id, p. 100, line 1)
MR. CLINTON: Yeah. (Id, line 2)
MR. GUTHRIE: When was she told that she was nonrenewed? (Id, line 3)
MR. CLINTON: No, because you told me you drew a distinction between the two. So when does she receive notice of discharge? Does she receive Notice of Discharge on the 12th of April to be effective the last day of school? Is that how it operates? Or if that is not how it operates, how does it? (Id, line 4-7)
MR. GUTHRIE: She was notified through her letter of nonrenewal that her contract would not be renewed. I call it nonrenewal, she calls it firing, you call it firing or nonrenewal, I don't know. (Id, line 8-10)
MR. CLINTON: No, Sir. I'm interested in terms of what the employer calls firing at this point and I still didn't get an answer to my question. On what date, cuz I want to limit the employer's information to establish misconduct relative to the date that she receives notice of termination because that's the time she's told she's fired. Subsequent events will have much less persuasive impact in my decision. So I'm back there. When in the eyes of the employer, you, did she receive notice of discharge and when was that discharge to be effective? (Id, line 11-17)
MR. GUTHRIE; The Notice of Nonrenewal was her notification that her contract would not be renewed and her contract was up at the end of the school year, which I think was the 25th of May. (Id, line 18-20)
MR. CLINTON: Let me make this clear. So, you're saying that she receives notice of termination, discharge, when she receives the Notice of Nonrenewal and that the effective date of her discharge would be the end of the school year? (Id, line 21-23)
MR. GUTHRIE: Correct. (p. 101, line 1)
MR. CLINTON: “...in this case I'm going to make an interim finding unless Mr. Bachrach objectures that I will consider the Notice of Nonrenewal is the Notice of Discharge… (Id, p. 102 line 10-12)
Mr. Clinton failed to establish a calendar date of discharge or my last day of work, yet he ruled that the Notice of Nonrenewal was the Notice of Discharge. This ruling contrary to N.D.C.C. 15.1-14-06. “[A]ll teacher and administrator discharge decisions must be made at a special board meeting held for that purpose. While a resignation, voluntarily made and then accepted by the board, may serve to eliminate the need for a hearing, it may result in denial of unemployment compensation and is therefore not frequently given.” . (Sections 15.1-14-06, 15.1-14-16, 15.1-14-26, and 15.1-15-08,
MR. BACHRACH: “I understand, but now, my concern based upon what I've heard is that they have not introduced any procedure by which she was terminated for Misconduct. (Id. p. 102, line 15, 16)
MR. CLINTON: “We'll go there later, Mr. Bachrach.” (Id, line 17)
I was fired on April 11th, without a proper hearing. I had been told to clear out my things and not return to teach out my contract. The referee could not possibly rule there was misconduct, since he has already ruled that the Notice of Nonrenewal is the Notice of Discharge.
MR. THUNE: Mr. Clinton----------(Id, p. 101, line 2)
MR. CLINTON: Yes, Mr. Thune, I want to go back because I think you understand where I'm going here. (Id, line 3-4)
MR. THUNE: Yes, I do and I think that Mr. Guthrie is not incorrect in his statement that the Nonrenewal meant that after the last day of school that year she would not be employed and further in the Warwick School Dictrict because the contract would not be nenewed. The School Board never went through a discharge hearing which is a separate section of the North Dakota Century Code, Section 15.1-15-06, I believe, and the discharge would be more consistent with the general meaning of firing because that means that the contract is over and we're not paying you anymore. A nonrenewal doesn't mean that at all. It means we're not going to issue you another contract and that hearing is required to be held by State law before the 15th of April and we have to make a decision before the 1st of May, if we are not going to offer them a contract for the next year. (Id, line 5-14)
MR. CLINTON: Well that's it, Mr. Thune, and you understand how these education employee's are treated. (Id, line 15-16)
MR. THUNE: Yes. (Id, line 17)
MR. CLINTON: So, if you had not gone through this process, she would have had a contractual right to be a school teacher in the fall. (Id, line 18-19)
MR. THUNE: Yes, she would have been, we had by law, we'd have been required to offer a contract again for the next fall that she would have a right to say yes or no-----(Id, line 20-22)
MR. CLINTON: Hold on, I've got an error message on my machine. I don't know what the issue was, I'm looking at my (INAUDIBLE), but the point is, you know, if you hadn't gone through the nonrenewal and she would have had a contract right, she would also not be allowed Unemployment Insurance benefits because she had reasonable assurance of reemployment. Thus, you know, for the Unemployment Compensation System, let's look---there's kind of a continual find of employment even though you have the Summer break and Winter break. (Id, p. 102, line 1-7)
MR. THUNE: That's correct. (line 8)
MR. CLINTON: Now, so, so, but, I thought you drew the distinction in terms of when she actually receives Notice that she's being let go and in this case I'm going to make an interim finding unless Mr. Bachrach objectures that I will consider the Notice of Nonrenewal the Notice of Discharge....(line 9-12)
Either Mr. Thune does not have a grasp on the NDCC teacher dismissal laws, or he is covering up for his poor advice to
Janis Schmidt’s actions of reporting rape and abuse to authorities and Warwick school board members did not constitute misconduct as her actions and statements were made in a lawful and ethical intent; whereas, the Appellees had a wrongful intent and evil design in mind in firing Janis Schmidt, to cover up the fact that they did not report as mandated by law, or assisted in the cover-up, expelled the rape victim, and fired the teacher.
V. Janis Schmidt’s conduct did not constitute misconduct and Job Service
Guthrie and Thune want to establish that I willfully disobeyed 5 reasonable directives and that I had ulterior motives in disobeying the directives, when actually, just the opposite is true. Mr. Guthrie and Mr. Riedinger had ulterior motives in ordering the 5 Directives. My attorney, Mr. Bachrach, was prevented from establishing the truth, that Jami Jetty was not the rape victim, but set up by Guthrie, to take the place of the real rape victim, Miranda Horse, who had been expelled. Mr. Clinton refused to allow this vital testimony. Mr. Clinton also exhibited bias against me when he predetermined “I’m gonna take it off the table because she [Ms. Schmidt] knows and I know, I understand from her writings that she couldn’t have been fired with that regard.” Such statement exhibits arrogant bias and predetermination. This is the point of the hearing, to find out when, why, and how I was fired, and Job Service hearing officer will not permit the question!!
MR. BACHRACH: Okay, certainly, but one of the issues here is and I’ll move on to another topic….(Id, p. 113, line 22-23)
MR. CLINTON: I think I allowed you to go down that road far enough. (Id, p. 114, line 1)
MR. BACHRACH: Okay. Mr…are you aware Mr. Guthrie that Mr. Riedinger in or about late October of 06, took Ms. Schmidt’s entire class of 7th graders out of class and held them to discuss a claim that someone from her class stole a Walkie Talkie? (Id, line 2-4)
MR. THUNE: And, I’m gonna object again, we just moved the wrong direction, instead of moving……………..(Id, line 5-6)
Why would Mr. Thune object to hearing about Mr. Riedinger holding a whole class hostage so that he could coerce them into falsely accusing me if he were truly interested in his employer’s, Warwick School, best interest?
MR. CLINTON: I…understand that, Mr. Thune. Let’s go back Mr. Bachrach. Once again, let’s look at conduct after January 5 of 07. (Id, p. 114, line 7-8)
Mr. Clinton condescends to my attorney, patronizingly explaining why Mr. Bachrach cannot introduce testimony and evidence to explain the reason behind my firing.
MR. BACHRACH: Okay, your honor, but I don’t think that and here’s my point, and I’ll just make it quickly. You’re going to see a pattern of none of the issues raised on January 5, 07, is a pattern of her alleged inability to control her class. You’re gonna see a history of escalating conduct by Mr. Riedinger for very bizarre reasons as to his undermining her ability to teach and undermining her ability to control her class, which undercuts any ability of find misconduct and Mr. Riedinger starts this conduct at least by October of 06 when…….(Id, p. 114, line 9-15)
MR. CLINTON: I understand that, Mr. Bachrach. Thank you for presenting that. Let me tell you this, though. If she wants to present that pattern, I think it would come best under direct examination. (Id, line 16-18) Because you’re asking Mr. Guthrie really to expand on things that you’ve heard tangentially from other people and who knows why. (Id, line 20-21)
The prevention by Mr. Clinton to allow Mr. Bachrach to cross examine Mr. Guthrie is contrary to NDCC effectively prevents me from telling my side of the story, as to why I was fired of January 4, 2007, and why I was coerced into agreeing to Guthrie’s 5 Directives. How can I effectively prove that I did not commit misconduct, if Mr. Clinton is not going to allow Mr. Bachrach to cross examine? An incident of removing a whole class of 7th graders from a scheduled English class for the purpose of extorting a false confession from them, certainly is the business of the superintendent, and not tangential knowledge from other people. If Mr. Clinton doesn’t know why, here was his opportunity to find out. These are key questions that only Mr. Guthrie could answer. Why did Mr. Thune object to Mr. Bachrach (1) representing me? (2) questioning Mr. Guthrie about Mr. Riedinger’s removing students from my class for spurious reasons? (3) questioning Mr. Guthrie about the rape victim and why she was expelled? What did Mr. Guthrie do about the Walkie Talkie incident? And why did he not report this strange behavior to the school board? Instead he reports to the school board that I can’t control my classes. Whose conduct evinces misconduct? Everyone connected with this has committed misconduct except the Appellant.
Mr. Riedinger's exhibited erratic behavior on April 4th, when he was playing cards with students, and advising them how to misbehave. A boy jumped up and left, followed by the other 2 card players. Nik claimed I made a disparaging comment about his father, which was untrue. It was untested, and Mr. Riedinger never talked with me about it. Instead, he placed me under house arrest! He told me to go to my room and stay there; that no students would be sent to my classroom for the rest of the day, which included 4 classes. I truly believe he had gone psycho and I wrote a letter to the Sheriff, advising him of Mr. Riedinger's bizarre behavior. I mailed a complaint (Inquiry) to Standards and Practices Board on April 7th, asking them to investigate Mr. Riedinger, Mr. Guthrie, and Mr. Michels. On or about April 10th, I notified Mr. Guthrie that I had submitted a Complaint and written a letter to the sheriff. I was fired the next day.
The question to be decided in this hearing are: (1) What was my last day of work? (2) What caused my termination? (3) If employer dismissed, did my conduct constitute misconduct? My last days at work become very important to determine these important questions for unemployment purposes. Mr. Thune and Mr. Clinton constantly objected or interrupted or refused to allow me to tell the facts of what happened from April 4 to
MR. BACHRACH: And what occurred that day? [
MS. SCHMIDT: The 10th grade Art class 3rd period. I had been in the, down in the teacher’s room cutting some paper in –preparation for my Art classes. We have no paper cutter in the art room, so I was a little late getting to my class. I was one or two minutes late because I was aware of this and I know this because I looked at the clock when I walked in, but I, I was greeted by a very strange sight. Mr. Riedinger was sitting at a table playing cards with 4 boys……..(Id, line 18-23)
MR. CLINTON: Okay, I think I’m gonna stop here. I think it becomes more of narrative now, Mr. Bachrach. (Id, p. 160, line 1-2)......I think a little more questions to ease her through….(Id, line 4) ….because it is, maybe I should’ve entertained what happened that day probably too broad before we found out. (Id, 6-7)
MR. BACHRACH: What occurred after he stopped playing cards with the children? (Id, line 18)
MS. SCHMIDT: …he left me with the problem of the kids playing cards and this was…………(Id, line 21-22)
MR. CLINTON: Stop! (Id, line 23)
Mr. Clinton did not want to get to is that Mr. Guthrie and Mr. Riedinger put me under house arrest, and ordered the students to stay away from my room because of the card playing incident. I was given no reason for this erratic behavior. Mr. Clinton prevented me from presenting material evidence which led directly to my being fired 7 days later on
[H]owever, exceptions must also be construed sensibly because we are required to interpret provisions of the North Dakota Century Code with a view to effecting their objectives.” NDCC §
VIII.
I have searched through Supreme Court cases, and have found none comparable to mine, a teacher labeled with misconduct in order for the school to conceal felony crimes. In the closest example case, Peters v. Bowman Public School District, 231 N.W.2d 817 (N.D. 1975) this court found that “…[t]he action of the school district in this case a clear attempt to evade § 44-04-19, N.D.C.C. When the official action of the school district is clearly the product of an illegal meeting, documented in the minutes, and not clearly denied in the testimony, such official action is invalid even though such official action is taken at an otherwise legal meeting.” My case is a misconduct case. Mr. Thune and Mr. Clinton are presenting it as a nonrenewal case.
The law, NDCC 15-47-38, is very specific in how the school board is to dismiss a teacher. (Addendum A, Teacher Dismissal laws, p. 73)
1. NDCC 15-47-38(1) . In the very sensitive area of discharge of teachers for cause prior to the expiration of the term of the teachers' contracts, or in decisions not to renew the contracts of teachers, school boards shall give serious consideration to the damage that can result to the professional stature and reputation of such teachers, which stature and reputation were acquired only after the expenditure of substantial time and money in obtaining the necessary qualifications for such profession and in years of practicing the profession of teaching; and that in all decisions of school boards relating to discharge or refusal to renew contracts, all actions of the board be taken with consideration and dignity, giving the maximum consideration to basic fairness and decency.
CONCLUSION
Mr. Thune and Mr. Clinton are hiding a crime of not reporting, and on this fact alone, this court should find that the misconduct committed was Job Service and
Respectfully submitted,
Janis Schmidt 418
CERTIFICATE OF SERVICE
Janis Schmidt v. Job
Case No. 03-07-C-00159
I swear upon pains and penalties of perjury that a true and correct copy of Appellant’s Brief, Motion for Extention of Time, and Motion to File Overlength Brief was mailed to respondents on
Gary R. Thune Pearce & Durick
Douglas A. Bahr Solicitor General
_______________________________
Janis Schmidt
ADDENDUM A, Teacher Dismissal Laws
N.D.C.C. 15-47-38. Legislative intent in employment of teachers - Notification of discharge or failure to renew - Hearing.
1. The legislative assembly, in recognition of the value of good employer-employee relationships between school boards of this state and the teachers employed in the school systems, the need to recruit and retain qualified teachers in this state, and further in recognition of the many intangibles in evaluating the performance of individual members of the teaching profession, urges that each school board of this state ensure through formally adopted policies, that channels of communication exist between the board, supervisory personnel, and teachers employed within its school system. In the very sensitive area of discharge of teachers for cause prior to the expiration of the term of the teachers' contracts, or in decisions not to renew the contracts of teachers, school boards shall give serious consideration to the damage that can result to the professional stature and reputation of such teachers, which stature and reputation were acquired only after the expenditure of substantial time and money in obtaining the necessary qualifications for such profession and in years of practicing the profession of teaching; and that in all decisions of school boards relating to discharge or refusal to renew contracts, all actions of the board be taken with consideration and dignity, giving the maximum consideration to basic fairness and decency.
2. The school board of any school district contemplating discharging a teacher for cause prior to the expiration of the term of the teacher's contract shall notify the teacher in writing of that fact at least ten days prior to the date of contemplated discharge. The teacher must be informed in writing of the time and place for a special meeting of the school board to be held on the question of the teacher's discharge prior to a final decision on the matter. The teacher must also be informed in writing of the teacher's right to demand a specification of the reasons for discharge, which must, upon receipt of the demand of the teacher, be furnished not less than five days prior to the meeting to be held on the question of the teacher's discharge. The reasons must be sufficient to justify the contemplated action of the board and may not be frivolous or arbitrary. A witness, if a minor, must be accompanied by a parent or parents, legal guardian, or legal counsel, if requested by the minor or the minor's parents. The teacher may then produce witnesses as may be necessary to refute the charges, which witnesses are subject to cross-examination. All procedures relative to evidence, subpoena of witnesses, oaths, record of testimony, decision, rehearing, appeals, certification of record, scope and procedure for appeals, appeals to the supreme court, and other administrative procedures must be conducted in accordance with chapter 28-32. The meeting must be an executive session of the board unless both the school board and the teacher requesting the meeting shall agree that it is to be open to other persons or the public. The teacher may be represented at the meeting by two representatives of the teacher's own choosing; and the teacher's spouse, or one other family member of the teacher's choice, may also attend the meeting if the teacher so desires. In addition to board members, the business manager of the school district, and the superintendent, the school board may be represented by two other representatives of its own choosing at such executive session. If the teacher so requests, the board must grant a continuance of not to exceed seven days unless good cause is otherwise shown. No cause of action for libel or slander may be brought for any statement expressed either orally or in writing at any executive session of the school board held for the purposes provided for in this section.
3. A school board may dismiss a teacher, effective immediately, for any of the following causes:
a. Immoral conduct, insubordination, or conviction of a felony.
b. Conduct unbecoming a teacher which requires the immediate removal of a teacher from the teacher's classroom duties.
c. Failure without justifiable cause to perform contracted duties.
d.