Court of Appeals Upholds Judge Pope's Decision

The Arkansas Court of Appeals handed down a ruling Wednesday, June 19, which upheld 10th Judicial District Circuit Court Judge Sam Pope's reversal of the Warren School Board's 2010 decision to terminate Col. Robert Avery, who had been acquitted of first-degree sexual assault of a 16-year old female student.

The following is an excerpt from the court's decision:

"In this case, the notice of termination provided by the District to Avery stated that the only reason his termination was being recommended was because he was charged with first- degree sexual assault of a minor. Avery was not put on notice that he would have to defend against any other allegations.
Notwithstanding that fact, the District introduced evidence, over Avery’s repeated objections, that Avery had given S.C. a cell phone, that he was seen on video leaving the school with a trash bag, and that he allegedly had inappropriate photos on his school computer. None of these three allegations were contained in the notice of 10 Cite as 2013 Ark. App. 414 termination. The District argued, and we agree, that evidence regarding the cell phone was permissible in that it was relevant to Avery’s credibility because he initially denied giving S.C. the phone. It was not permissible, however, as substantive evidence as a reason for termination. Further, the other two reasons, i.e., leaving the school building with a trash bag and allegedly having inappropriate photos on his school computer, did not go to Avery’s credibility; rather, they were offered in support of his termination. Although the District submits that the sole reason for termination considered by the school board was the sexual- assault charge provided in the notice, the posthearing deposition evidence of school board members introduced to the circuit court reflected otherwise. School board president Jerry Daniels testified that “we were terminating Avery for having a student in his home inappropriately,” and that Avery’s dismissal had nothing to do with any criminal matters. School board member Anne Smith testified that the reasons for Avery’s termination included the cell phone issue, the computer issue, and being on campus at odd times. This demonstrated that the school board considered reasons not contained in the notice in direct violation of the TFDA. That being so, we hold that the circuit court committed no error in declaring Avery’s termination void and in reinstating his employment contract."

Affirmed.

HARRISON and BROWN, JJ., agree.