Brian Say v. Umatilla School , 364 F. App'x 385 ( 2010 )

FILED
NOT FOR PUBLICATION FEB 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BRIAN SAY, No. 09-35091
Plaintiff - Appellant, D.C. No. 3:08-cv-00348-ST
v.
MEMORANDUM *
UMATILLA SCHOOL DISTRICT 6, a
political subdivision of the State of Oregon
and public body corporate; ADAM
RUSSELL, as a member of the Umatilla
School District Board of Directors; TOBY
CRANSTON, as a member of the Umatilla
School District Board of Directors; PAT
LAFFERTY, as a member of the Umatilla
School District Board of Directors;
SCOTT LARSON as a member of the
Umatilla School District Board of
Directors; JAN MCIVER, as a member of
the Umatilla School District Board of
Directors; SONDRA PANKEY, as a
member of the Umatilla School District
Board of Directors; BOB WIMBERLY, as
a member of the Umatilla School District
Board of Directors,
Defendants - Appellees.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Oregon
Janice M. Stewart, Magistrate Judge, Presiding
Submitted February 4, 2010 **
Seattle, Washington
Before: RYMER, GOULD, and BYBEE, Circuit Judges.
Brian Say appeals the district court’s grant of summary judgment in favor of
Umatilla School District. Say argues that the process by which Umatilla
terminated his contract as Superintendent did not comport with the requirements of
the Due Process Clause. We review the district court’s grant of summary judgment
de novo. Greene v. Camreta, 588 F.3d 1011, 1021 (9th Cir. 2009). We are
unpersuaded by Say’s arguments and affirm the judgment of the district court.
As a general matter, before being fired a public employee with a property
interest in continued employment “is entitled to oral or written notice of the
charges against him, an explanation of the employer’s evidence, and an
opportunity to present his side of the story.” Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532, 546 (1985). Here, Say received written notice, an explanation of
Umatilla’s evidence, and an opportunity to present his side of the story. He argues,
however, that the hearing with which he was provided was not meaningful because
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the school board had already prejudged the case against him. We are willing to
accept the premise of Say’s argument but not his conclusion.
To some extent, the Board was forced to “prejudge” Say’s case. There
would have been no need for a hearing unless the Board had decided that there
were grounds for terminating Say’s employment. The Board’s decision to
terminate Say’s employment could only be based on its judgment that Say’s
performance was not satisfactory. That the Board was familiar with Say’s
performance and the facts of his case, moreover, does not disqualify it from
conducting the hearing. See Hortonville Joint Sch. Dist. No. 1 v. Hortonville Educ.
Ass’n, 426 U.S. 482, 493 (1976); Vanelli v. Reynolds Sch. Dist. No. 7, 667 F.2d
773, 779 (9th Cir. 1982). That the Board members had some view about Say’s
performance was inevitable; it was their responsibility to monitor him. It also does
not diminish the process provided to Say: he had a full opportunity to persuade the
Board members that he should keep his job.
Even if the board “prejudged” Say’s case, there is no evidence that it
exhibited “impermissible bias” during the termination process. See Vanelli, 667
F.2d at 779 n.10. Public officials are presumed to act with honesty and integrity.
Hortonville, 426 U.S. at 497. In order to rebut that presumption, Say must point to
evidence that members of the Board had a “personal or financial stake in the
decision that might create a conflict of interest . . . [or evidence] of personal
animosity.” Hortonville, 426 U.S. at 491-92. Because Say does not argue that
Board members had a personal or financial stake in the decision, he must prove
that Board members bore some kind of animosity toward him.
The evidence Say amasses falls far short in this respect. Say primarily relies
on individual Board members’ statements to the effect that Say’s performance was
not up to par. Say does not point to any personal attacks or any other conduct or
language that could be construed as evidence of animosity. Indeed, he admits that
he was not at all surprised by the Board’s reasons for wanting to terminate his
contract, because they were the same concerns the Board had been raising for
years. School board members do not exhibit impermissible bias by attempting to
fulfill their public responsibilities.
For the same reasons, the district court did not err in denying Say’s breach of
contract claim.
AFFIRMED.