{
  "id": 8525442,
  "name": "LEO TABORN v. CLEVELAND HAMMONDS, as Superintendent of the Durham City Schools, and DURHAM CITY BOARD OF EDUCATION",
  "name_abbreviation": "Taborn v. Hammonds",
  "decision_date": "1988-09-20",
  "docket_number": "No. 8714SC1070",
  "first_page": "302",
  "last_page": "315",
  "citations": [
    {
      "type": "official",
      "cite": "91 N.C. App. 302"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "350 S.E. 2d 880",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 3,
      "year": 1986,
      "pin_cites": [
        {
          "parenthetical": "hereinafter Tabom I"
        },
        {
          "page": "886-87"
        }
      ],
      "opinion_index": -1
    },
    {
      "cite": "83 N.C. App. 461",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8358826
      ],
      "weight": 2,
      "year": 1986,
      "pin_cites": [
        {
          "parenthetical": "hereinafter Tabom I"
        },
        {
          "page": "472"
        }
      ],
      "opinion_index": -1,
      "case_paths": [
        "/nc-app/83/0461-01"
      ]
    },
    {
      "cite": "342 S.E. 2d 892",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1986,
      "pin_cites": [
        {
          "parenthetical": "contentions not raised at trial may not be raised for the first time on appeal"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "316 N.C. 375",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4701056,
        4695055,
        4700401,
        4695802,
        4703035
      ],
      "year": 1986,
      "pin_cites": [
        {
          "parenthetical": "contentions not raised at trial may not be raised for the first time on appeal"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/316/0375-03",
        "/nc/316/0375-04",
        "/nc/316/0375-02",
        "/nc/316/0375-01",
        "/nc/316/0375-05"
      ]
    },
    {
      "cite": "336 S.E. 2d 146",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
      "opinion_index": 0
    },
    {
      "cite": "77 N.C. App. 792",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8525427
      ],
      "year": 1985,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/77/0792-01"
      ]
    },
    {
      "cite": "190 S.E. 2d 204",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1972,
      "opinion_index": 0
    },
    {
      "cite": "281 N.C. 722",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8576424
      ],
      "year": 1972,
      "opinion_index": 0,
      "case_paths": [
        "/nc/281/0722-01"
      ]
    },
    {
      "cite": "304 S.E. 2d 199",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1983,
      "pin_cites": [
        {
          "page": "203"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "308 N.C. 759",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4710017
      ],
      "year": 1983,
      "pin_cites": [
        {
          "page": "765"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/308/0759-01"
      ]
    },
    {
      "cite": "401 U.S. 402",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        11712629
      ],
      "weight": 2,
      "year": 1971,
      "opinion_index": 0,
      "case_paths": [
        "/us/401/0402-01"
      ]
    },
    {
      "cite": "329 S.E. 2d 389",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
      "opinion_index": 0
    },
    {
      "cite": "313 N.C. 506",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4724648,
        4719920,
        4726261,
        4722874,
        4721598
      ],
      "year": 1985,
      "opinion_index": 0,
      "case_paths": [
        "/nc/313/0506-04",
        "/nc/313/0506-03",
        "/nc/313/0506-05",
        "/nc/313/0506-01",
        "/nc/313/0506-02"
      ]
    },
    {
      "cite": "321 S.E. 2d 502",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1984,
      "opinion_index": 0
    },
    {
      "cite": "71 N.C. App. 48",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8523740
      ],
      "weight": 4,
      "year": 1984,
      "pin_cites": [
        {
          "page": "52-53"
        },
        {
          "page": "53"
        },
        {
          "page": "52-53"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/71/0048-01"
      ]
    },
    {
      "cite": "233 S.E. 2d 538",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 3,
      "year": 1977,
      "pin_cites": [
        {
          "page": "541"
        },
        {
          "page": "541"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "292 N.C. 406",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8569880
      ],
      "weight": 2,
      "year": 1977,
      "pin_cites": [
        {
          "page": "410"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/292/0406-01"
      ]
    },
    {
      "cite": "321 S.E. 2d 893",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1984,
      "pin_cites": [
        {
          "parenthetical": "citation omitted"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "312 N.C. 81",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4755172,
        4756557,
        4756237,
        4749458,
        4754484
      ],
      "year": 1984,
      "pin_cites": [
        {
          "parenthetical": "citation omitted"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/312/0081-04",
        "/nc/312/0081-03",
        "/nc/312/0081-01",
        "/nc/312/0081-05",
        "/nc/312/0081-02"
      ]
    },
    {
      "cite": "317 S.E. 2d 912",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1984,
      "pin_cites": [
        {
          "page": "916",
          "parenthetical": "citation omitted"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "69 N.C. App. 615",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8526760
      ],
      "year": 1984,
      "pin_cites": [
        {
          "page": "619-20",
          "parenthetical": "citation omitted"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/69/0615-01"
      ]
    },
    {
      "cite": "350 S.E. 2d 880",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 7,
      "year": 1986,
      "pin_cites": [
        {
          "page": "885"
        },
        {
          "page": "883"
        },
        {
          "page": "886"
        },
        {
          "page": "883"
        },
        {
          "page": "885"
        },
        {
          "page": "885"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "83 N.C. App. 461",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8358826
      ],
      "weight": 7,
      "year": 1986,
      "pin_cites": [
        {
          "page": "469"
        },
        {
          "page": "466"
        },
        {
          "page": "471"
        },
        {
          "page": "466"
        },
        {
          "page": "469"
        },
        {
          "page": "470"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/83/0461-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 958,
    "char_count": 25125,
    "ocr_confidence": 0.823,
    "pagerank": {
      "raw": 2.381598775612222e-07,
      "percentile": 0.7968823665009042
    },
    "sha256": "67905331da460b7f018dd2990243eaa77352064903aefcb9285bcc8bfffac0a2",
    "simhash": "1:e7cdc5105536e074",
    "word_count": 4016
  },
  "last_updated": "2023-07-14T21:33:36.579827+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judge Parker concurs.",
      "Judge Wells dissents."
    ],
    "parties": [
      "LEO TABORN v. CLEVELAND HAMMONDS, as Superintendent of the Durham City Schools, and DURHAM CITY BOARD OF EDUCATION"
    ],
    "opinions": [
      {
        "text": "ORR, Judge.\nI.\nPlaintiffs first argument is that the Board did not establish a justifiable decrease in the number of teaching positions because of decreased funding in the 1984-85 school year. We agree.\nN.C.G.S. \u00a7 115C-325(e)(l) states:\nNo career teacher shall be dismissed or demoted . . . except for one or more of the following:\n1. A justifiable decrease in the number of positions due to district reorganization, decreased enrollment, or decreased funding ....\nN.C.G.S. \u00a7 115C-325(m)(l) makes subsection (e) applicable to probationary teachers dismissed during the school year.\nIn Taborn I, this Court noted an \u201cabsence of findings regarding the relationship of headcounts in areas of the Exceptional Children Program to the termination of plaintiff . . . Taborn v. Hammonds, 83 N.C. App. at 469, 350 S.E. 2d at 885, and that the Board\u2019s decision did not specify in which areas the staff reductions occurred.\nIn the case sub judice, the Board made detailed findings of fact, including the following:\nThat because of the aforementioned loss of funds [$58,560.00 in the Title VI-B program and $211,150.72 in the State Aid Exceptional Children program], the Exceptional Children Program, which had been staffed in reliance upon the initial proposed allotments, did not have sufficient funds for personnel expenses to pay all the professional . . . persons who had originally been assigned to said program for the 1984-85 school year.\nThat at the request of the Superintendent and in accordance with Board policy, the Director of Exceptional Children and the Director of Instruction reviewed and made recommendations for consolidation and elimination of positions to serve the 1984-85 Exceptional Children Program enrollment within the State guidelines without detriment to the system\u2019s obligation to provide the most meaningful educational program to its students in accordance with its policy on Reduction in Instructional Personnel.\nThat is what was recommended and approved that six aide positions be eliminated in non-self contained classes, that one teaching position be eliminated from the Speech Language Therapy Service, that two teaching positions be eliminated from the Academically Gifted, that one EMH teaching [position] be eliminated from Burton Elementary, that one EMH position be eliminated from Holton Middle, and that one EMH resource services position be consolidated for the Fayetteville Street and Y. E. Smith Elementary Schools.\nWhile these findings of fact provide an adequate explanation for reducing specific personnel, they do not justify the initial decision culminating in a decrease in the number of positions in the Exceptional Children\u2019s Program.\nThe threshold issue that must be determined under N.C.G.S. \u00a7 115C-325(e)(l) is whether decreased funding automatically justifies a decrease in teaching positions. As we stated in Tabom I, our legislature expressly intended to protect teachers in special education programs and related areas from a reduction in funding. Taborn v. Hammonds, 83 N.C. App. at 466, 350 S.E. 2d at 883. The purpose of N.C.G.S. \u00a7 115C-325 et seq. (known as the Teacher Tenure Act, formerly N.C.G.S. \u00a7 115-142 et seq.) is \u201cto provide teachers of proven ability . . . [protection] from dismissal for political, personal, arbitrary or discriminatory reasons.\u201d Bennett v. Bd. of Education, 69 N.C. App. 615, 619-20, 317 S.E. 2d 912, 916, cert. denied, 312 N.C. 81, 321 S.E. 2d 893 (1984) (citation omitted).\nUpon learning of the decreased funding, defendants\u2019 conclusion was to reduce teaching positions. In light of the requirement for a \u201cjustifiable decrease in the number of positions\u201d under N.C.G.S. \u00a7 115C-325(e)(l)(l) and the purpose of the Teacher Tenure Act discussed above, we conclude that the automatic decision to reduce teaching positions as the response to the funding cut is precisely the kind of decision from which our legislature intended to protect teachers.\nIt should be further noted that the Board\u2019s conclusions refer to a \u201cjustifiable decrease in funding\u201d and that the \u201creduction in professional staff was an appropriate response.\u201d The statutory test in N.C.G.S. \u00a7 115C-325(e)(l)(l) is \u201c[a] justifiable decrease in the number of positions\u201d not a justifiable decrease in funding and an appropriate response.\nThe record before us does not explain how defendants reached the decision to reduce personnel. The only alternative defendants explored was to spread the reduction in funding over a two year period. We believe defendants adequately explained their reasons for not selecting this alternative, and we do not take issue with this decision.\nHowever, there is little discussion regarding other alternatives defendants may have had. Richard F. Barber (Assistant Superintendent of Business) testified that he only looked at personnel costs involved in the program to project the extent of the budget deficit. There was no testimony regarding consideration of other costs involved in administering the specific program or other programs, nor was there information concerning the entire budget\u2019s inclusion of teaching salaries, administrative costs, overhead costs, supplies and other personnel. Barber further testified that teachers\u2019 salaries are paid by local funds, and that \u201c[i]f sufficient funds were approved [by the county commissioners] we could cover additional personnel.\u201d He did not testify regarding any request for additional funds.\nWhile the record is unclear on the entire budgetary process, it is clear that the money lost was not earmarked for specific teaching positions. Barber later testified that there was a surplusage in the Durham City School budget in June 1984. The record does not reflect why the reduction was not absorbed within the entire budget or spread throughout the city school system.\nDr. Kenneth Warlick (Supervisor for Programs for Exceptional Children) testified that when he determined that the headcount total had been overestimated for that school year, he was instructed to draft a proposal to consolidate or eliminate positions and still maintain quality. Warlick further testified that they (Durham City Schools) had to reduce positions because of a reduction in funds.\nDefendant Hammonds then testified that after Dr. Warlick and the committee made certain investigations, he (Warlick) made recommendations to consolidate or eliminate certain positions. The testimony is simply incomplete on the issue of why a decrease in funds allocated to a particular program automatically resulted in a reduction of teaching positions for that program.\nTherefore, we hold that to establish a justifiable decrease in the number of positions due to decreased funding under N.C.G.S. \u00a7 115C-325(e)(l)(l), defendants must present evidence justifying the decrease in teaching positions beyond the mere fact that funding has been reduced. Black\u2019s Law Dictionary defines justifiable as \u201c[r]ightful; defensible; [or] . . . that which can be shown to be sustained by law ....\u2019\u2019 Black\u2019s Law Dictionary 778 (rev. 5th ed. 1979).\nIn Taborn I, this Court \u201crecognize[d] that program decisions are entirely within the expertise of the Durham City Board of Education, and we do not seek to nor deem it wise or allowable under the law of this state for us to interpose our judgment in these matters.\u201d Taborn v. Hammonds, 83 N.C. App. at 471, 350 S.E. 2d at 886. We emphasize that we are not interposing our judgment for that of the Board. The public policy of this state, as expressed in N.C.G.S. \u00a7 115C-325, allows defendants to eliminate teaching positions because of decreased funding only if justified. See Taborn v. Hammonds, 83 N.C. App. 461, 350 S.E. 2d 880.\nIf defendants can justify their decision to eliminate positions, we defer to their judgment in determining which positions to eliminate in any particular program providing they follow the statutory requirements. Defendants must always meet the initial requirement of justifying the decrease in positions before discharging any teacher covered by this statute.\nAccordingly, this issue must be remanded once again to the Board for a new hearing consistent with this opinion.\nII.\nPlaintiff next argues that the evidence at the second hearing did not support a finding that he was discharged according to Board policy.\nN.C.G.S. \u00a7 150A-51 (recodified by \u00a7 150B-51(b), effective 1 January 1986) prescribes our scope of review:\nThe court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the agency findings, inferences, conclusions, or decisions are:\n(1) In violation of constitutional provisions; or\n(2) In excess of the statutory authority or jurisdiction of the agency; or\n(3) Made upon unlawful procedure; or\n(4) Affected by other error of law; or\n(5) Unsupported by substantial evidence admissible under G.S. 150A-29(a) or G.S. 150A-30 in view of the entire record as submitted; or\n(6) Arbitrary or capricious.\nUnder subsection (5), the standard of review is the \u201cwhole record\u201d test. Thompson v. Board of Education, 292 N.C. 406, 233 S.E. 2d 538 (1977).\nThe \u2018whole record\u2019 test does not allow the reviewing court to replace the Board\u2019s judgment as between two reasonably conflicting views, even though the court could justifiably have reached a different result had the matter been before it de novo, Universal Camera Corp., supra. On the other hand, the \u2018whole record\u2019 rule requires the court, in determining the substantiality of evidence supporting the Board\u2019s decision, to take into account whatever in the record fairly detracts from the weight of the Board\u2019s evidence. Under the whole evidence rule, the court may not consider the evidence which in and of itself justifies the Board\u2019s result, without taking into account contradictory evidence or evidence from which conflicting inferences could be drawn.\nId. at 410, 233 S.E. 2d at 541.\nIn Abell v. Nash County Bd. of Education, 71 N.C. App. 48, 321 S.E. 2d 502 (1984), disc. rev. denied, 313 N.C. 506, 329 S.E. 2d 389 (1985), this Court followed the \u201cgeneral rule that \u2018arbitrary\u2019 or \u2018capricious\u2019 reasons are those without any rational basis in the record, such that a decision made thereon amounts to an abuse of discretion.\u201d 71 N.C. App. at 52-53, 321 S.E. 2d at 506. Relying on Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 28 L.Ed. 2d 136 (1971), the Abell Court ruled that a \u201creviewing court must be able to determine what factors were used to reach an administrative decision as well as whether said decision was arbitrary, capricious, an abuse of discretion, or not in accordance with law.\u201d Taborn v. Hammonds, 83 N.C. App. at 466, 350 S.E. 2d at 883, citing, Abell v. Nash County Bd. of Education, 71 N.C. App. at 53, 321 S.E. 2d at 507.\nIn the case sub judice, the Board made the following findings of fact:\nThat only two teachers had left the program due to normal attrition such as retirement, resignation, and leave of absence as must be considered in accordance with the Policy on Reduction in Instructional Personnel; therefore, it was necessary to determine which teachers would teach the remaining classes, and which teachers would be recommended for termination from employment.\nThat the Director of Exceptional Children and the Director of Instruction reviewed the qualifications, certification, evaluations and experience of all the professional staff in the Exceptional Children Program in order to make the necessary reductions to bring the personnel more in line with the funding available for said program.\nThat respondent, Leo Taborn, had the lowest level of certification, an A certificate, and the least amount of experience, zero years of experience, of any teacher in the entire Exceptional Children Program.\nThat Leo Taborn had no evaluation in his file as teacher. There was an evaluation in his file as an Aide. Although the evaluation in his file as an Aide was considered, because of the distinctions between the duties of an Aide and as a Teacher, it was not controlling in making the determination to recommend the termination of Leo Taborn.\nThat although the emotionally handicapped students were not miscounted, the recommendations from the Director of the Exceptional Children Program for reduction of positions and personnel did not result in the failure of the students in the 1984-85 school year being served appropriately; further, the various categories of exceptional children to be served in one school year often necessitate changes in teaching capacities from the prior year.\nThat funds are not allocated for sub-groups in the Exceptional Children Program but for the Exceptional Children\u2019s Program as one entity.\nWe must now apply the \u201cwhole record\u201d test and determine if it supports the Board\u2019s conclusion that:\nThe Board policy regarding Reduction in Instructional Personnel and State law were followed in making the selection of which members of the professional staff were to be recommended for dismissal.\nThe Board based its decision on the following policy:\nPolicy Regarding Reduction\nin Instructional Personnel\nWhen it has been decided that there shall be a reduction in the number of teachers or principals employed in the system, the following criteria shall be used in determining which individuals shall be dropped from employment:\na) To the extent possible, the decrease shall be met by normal attrition such as retirement, resignation, leave of absence, etc.\nb) The requirements of the system to provide the most meaningful educational program to its pupils.\nc) The qualifications and experience of the individuals being reviewed in relation to the position(s) to be filled.\nd) The previous evaluations which have been made concerning the individuals being reviewed.\ne) If other considerations are substantially similar, a career teacher shall be given preference in retention over a probationary teacher.\nIn Taborn I, the transcript of the hearing revealed \u201cinconsistent and contradictory testimony ... as to the weight each criterion in the Board\u2019s policy is to be given and as to how they were relied on . . . .\u201d Taborn v. Hammonds, 83 N.C. App. at 469, 350 S.E. 2d at 885.\nHere, Dr. Warlick testified on direct examination:\nQ. When you began to look at the individuals, did you review and follow the policy regarding the reduction of forces?\nA. Yes, it was followed exactly all five steps.\nQ. Looking at it now from December 1984, January 1985, put your place back in time, back to the future and at that time had there been a decrease in normal attrition, retirement, leave of absence to take care of these reductions?\nA. To take care of the reductions.\nQ. And the positions?\nA. There were two instances, we had one individual that was on a leave of absence and we had a teacher working with the gifted program who was substituting for that individual.\nQ. These two positions was all that was taken care of due to normal attrition in the first step of the reduction in force?\nA. Right.\nOn cross-examination, Dr. Warlick admitted that his committee did not make projections in the normal attrition rate for the 1984-85 or 1985-86 years. He explained (on redirect) that even if he knew who was going to resign at the end of the 1984-85 school year, it would not save money during the year in question.\nIt is clear from Dr. Warlick\u2019s and defendant Hammonds\u2019 testimony that Dr. Warlick\u2019s committee considered the normal attrition rate before moving to the next criteria. Both Dr. Warlick and Hammonds testified that although normal attrition (criteria (a)) was applied first, the rest were given equal weight in their /decision process.\nThe next three criteria, meaningful educational program, qualifications and experience of the individuals and previous evaluations, were considered together and adequately addressed by the committee.\nWe have thoroughly reviewed the whole record and hold that there was no \u201ccontradictory evidence or evidence from which conflicting inferences could be drawn.\u201d Thompson v. Board of Education, 292 N.C. at 410, 233 S.E. 2d at 541. There is nothing in the record that indicates plaintiff was a victim of a \u201clast hired first fired\u201d approach that this Court was concerned with in T\u00e1bom I. Taborn v. Hammonds, 83 N.C. App. at 470, 350 S.E. 2d at 885.\nFurther, we hold that the Board\u2019s decision to terminate Tabora, once they determined that teaching positions would be decreased, was not arbitrary, capricious or an abuse of discretion. Abell v. Nash County Bd. of Education, 71 N.C. App. at 52-53, 321 S.E. 2d at 506. There is extensive evidence to support the Board\u2019s efforts in determining which teachers to terminate, and that the Board followed its policy regarding reduction in personnel.\nIII.\nPlaintiff next contends that his firing was illegal under the doctrine of equitable estoppel. This issue was not raised in the first appeal, during the second hearing or on appeal to the court below.\nThe Supreme Court of North Carolina has stated that \u201c[we] will not decide questions which have not been presented in the courts below . . . .\u201d White v. Pate, 308 N.C. 759, 765, 304 S.E. 2d 199, 203 (1983), citing, Plemmer v. Matthewson, 281 N.C. 722, 190 S.E. 2d 204 (1972). See also Childers v. Hayes, 77 N.C. App. 792, 336 S.E. 2d 146 (1985), disc. rev. denied, 316 N.C. 375, 342 S.E. 2d 892 (1986) (contentions not raised at trial may not be raised for the first time on appeal).\nEven if this issue were properly before this Court, there is insufficient evidence to support a finding of equitable estoppel.\nPlaintiff excepts to the finding that his contract \u201ccontained a provision that State supported positions are subject to the allotment of personnel and funds from the State Board of Education and a further provision ... if the position ... is terminated, the contract shall be terminated. The duties of each employee were to be as assigned by the Superintendent.\u201d\nThis finding of fact is correct and so stated in plaintiffs contract. The problem is that plaintiffs position was not terminated; plaintiff was terminated. There was no reduction in the number of positions in his specific area. The reduction was in the entire Exceptional Children Program in which plaintiff was employed.\nFor the reasons set forth in I. above, we reverse and remand for a new hearing.\nAffirmed in part, reversed in part, and remanded.\nJudge Parker concurs.\nJudge Wells dissents.",
        "type": "majority",
        "author": "ORR, Judge."
      },
      {
        "text": "Judge Wells\ndissenting.\nMy review of the whole Record convinces me that the Record supports the Durham City Board of Education\u2019s decision to terminate plaintiffs employment as a teacher; that its decision was not made upon unlawful procedure nor affected by any other error of law; and that its decision was not arbitrary or capricious. I therefore respectfully dissent from Part I of the majority opinion and vote to affirm the judgment of the Superior Court.",
        "type": "dissent",
        "author": "Judge Wells"
      }
    ],
    "attorneys": [
      "Glenn & Bentley, P.A., by Stewart W. Fisher, attorney for plaintiff-appe llant.",
      "Spears, Barnes, Baker, Hoof & Wainio, by Marshall T. Spears, Jr. and Gary M. Whaley, attorneys for defendant-appel-lees."
    ],
    "corrections": "",
    "head_matter": "LEO TABORN v. CLEVELAND HAMMONDS, as Superintendent of the Durham City Schools, and DURHAM CITY BOARD OF EDUCATION\nNo. 8714SC1070\n(Filed 20 September 1988)\n1. Schools \u00a7 13.2\u2014 reduction in funding \u2014 justifiable decrease in teaching positions \u2014evidence required\nIn order to establish a justifiable decrease in the number of teaching positions due to reduced funding under N.C.G.S. \u00a7 115C-325(e)(l)(l), defendant board of education must present evidence justifying the decrease in teaching positions beyond the mere fact that funding has been reduced. In this case, defendant board failed to establish a justifiable decrease in the number of teaching positions for emotionally handicapped students because of decreased funding for the 1984-85 school year where the record does not explain how defendant reached the decision to reduce personnel.\n2. Schools \u00a7 13.2\u2014 teacher dismissal \u2014 reduction in force policy\nA city board of education followed its reduction in force policy in the midyear dismissal of plaintiff as a teacher of emotionally handicapped students after funds for the Exceptional Children Program were reduced.\n3. Schools \u00a7 13.2\u2014 teacher dismissal \u2014 no equitable estoppel\nDefendant board of education was not equitably estopped from dismissing plaintiff as a teacher of emotionally handicapped students in the middle of the school year after funds for the Exceptional Children Program were reduced.\nJudge Wells dissenting.\nAppeal by plaintiff from Stephens, Judge. Judgment entered 31 July 1987 in Superior Court, DURHAM County. Heard in the Court of Appeals 30 March 1988.\nThis appeal is the second appeal of this case to this Court. In Tabom v. Hammonds, 83 N.C. App. 461, 350 S.E. 2d 880 (1986) (hereinafter Tabom I), this Court vacated and remanded an appeal from an administrative decision by the defendant Durham City Board of Education (hereinafter the Board) to discharge plaintiff, Leo Tabora, a teacher in an Emotionally Handicapped classroom, during the middle of a school year. This Court found in Tabom I that the Board\u2019s decision to terminate plaintiff was not supported by the evidence and remanded the case for a new hearing consistent with N.C.G.S. \u00a7 150A-51 (recodified by \u00a7 150B-51, effective 1 January 1986) and the Board\u2019s policy regarding reduction in personnel. This Court further held that plaintiff received a fair and impartial hearing, and that the departure of a board member during the hearing and absence during the Board\u2019s deliberations did not deny him due process of his right to a fair tribunal. Tabom v. Hammonds, 83 N.C. App. at 472, 350 S.E. 2d at 886-87.\nThe facts surrounding plaintiffs firing and the Board\u2019s subsequent actions are set forth in Tabom I at 462-64, 350 S.E. 2d at 881-82 and only those facts relevant to this decision will be discussed. Pursuant to this Court\u2019s remand, plaintiff received a letter from defendant Cleveland Hammonds, Superintendent of Durham City Schools, dated 10 February 1987 explaining the basis of plaintiffs dismissal.\nAs a result of a teacher audit by the North Carolina Department of Public Instruction in 1984, the Durham City Schools were not funded for the 1984-85 school year for the number of positions which were previously filled in our system for the Exceptional Children program. In order to adjust to this decrease in funding, it was necessary to take various actions. Insofar as these actions were to affect teachers within the system, I followed the Durham City Schools\u2019 policy regarding Reduction in Instructional Personnel. A copy of this policy is attached to this letter and incorporated herein for your reference.\nAt my direction a committee reviewed all available records of the teachers in the Exceptional Children program against the responsibility of the system to provide a meaningful educational program to our pupils. After determining that the system was retaining teachers properly certified and qualified in the areas to be serve[d], significant factors in the selection for dismissal were the extent of educational credentials and teaching experience in the North Carolina Public Schools. In reviewing your credentials it was determined that you had the lowest certification level, A, and the least amount of previous teaching experience in the North Carolina Public Schools. I also determined that a qualified and experienced teacher was available to transfer into the position which you were teaching. For these reasons your name w\u00e1s included among those whom I recommended to the Board for dismissal no sooner than the end of the first semester of that school year.\nOn 25 February 1987, the Board held a second administrative hearing and concluded:\n1. That the decrease in funding for the Exceptional Children Program . . . was based on a corrected head count [according to State and Federal funding guidelines].\n2. That this constituted a justifiable decrease in funding; and a reduction in professional staff was an appropriate response to this decrease.\n3. The Board policy regarding Reduction in Instructional Personnel and State law were followed in making the selection of which members of the professional staff were to be recommended for dismissal.\n4. That the recommendation of the Superintendent that Leo Tabora be dismissed is substantiated by the preponderance of evidence [and ratified by the Board].\nThe trial court upheld the Board\u2019s decision, and found that the Board sufficiently explained the basis upon which plaintiff was terminated, that Board policy was followed, and that a rational basis existed between plaintiff being fired and the Board\u2019s decision.\nPlaintiff appeals on three grounds: (1) that the Board did not establish a justifiable decrease in the number of teaching positions for emotionally handicapped students because of decreased funding in the 1984-85 school year; (2) that the evidence at the second hearing did not support the findings that plaintiff was discharged according to Board policy; and (3) that the Board is equitably estopped from discharging plaintiff.\nGlenn & Bentley, P.A., by Stewart W. Fisher, attorney for plaintiff-appe llant.\nSpears, Barnes, Baker, Hoof & Wainio, by Marshall T. Spears, Jr. and Gary M. Whaley, attorneys for defendant-appel-lees."
  },
  "file_name": "0302-01",
  "first_page_order": 330,
  "last_page_order": 343
}
