Pat Cooper v. Lafayette Parish School Board

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-169

PAT COOPER

VERSUS

LAFAYETTE PARISH SCHOOL BOARD

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20145941
HONORABLE PATRICK L. MICHOT, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, James T. Genovese, and John E. Conery,
Judges.

AFFIRMED.

Conery, J., dissents and assigns reasons.

L. Lane Roy
Brown Sims, P.C.
600 Jefferson Street, Suite 800
Lafayette, LA 70501
(337) 484-1240
COUNSEL FOR PLAINTIFF/APPELLANT:
Dr. Pat Cooper

Shelton Dennis Blunt
Paul LeBlanc
Jack B. Stanley
Phelps Dunbar LLP
P. O. Box 4412
Baton Rouge, LA 70821-4412
(225) 346-0285
COUNSEL FOR DEFENDANT/APPELLEE:
Lafayette Parish School Board

PETERS, J.

The plaintiff, Dr. Pat Cooper, appeals a trial court judgment affirming the

decision of the defendant, the Lafayette Parish School Board, removing Dr. Cooper

from his position as superintendent of the Lafayette Parish School District prior to

the end of his employment contract. For the following reasons, we affirm the

decision of the Lafayette Parish School Board and the district court judgment

affirming that decision.

DISCUSSION OF THE RECORD

On January 1, 2012, the Lafayette Parish School Board (School Board)

appointed Dr. Cooper to a three-year term as Superintendent of the Lafayette

Parish School District (School District). After a two-day hearing beginning on

November 5, 2014, a two-thirds majority of the School Board found merit in four

of five charges asserted against Dr. Cooper and voted to terminate his employment

immediately.

On November 20, 2014, Dr. Cooper appealed that decision to the Fifteenth

Judicial District Court in Lafayette Parish (district court). In that appeal, he

asserted that the School Board acted without cause in terminating his employment,

and he sought either reinstatement or compensation for the remaining term of that

contract. On the second day of a two-day hearing beginning on September 21,

2015, the district court found merit in one of the remaining four charges and

affirmed the School Board‟s action in removing Dr. Cooper. The district court

executed a judgment to that effect on October 19, 2015, and thereafter, Dr. Cooper

filed this appeal.

In his one assignment of error, Dr. Cooper asserts that the trial court

“misapplied the law” in sustaining the School Board‟s decision on the single count.

The School Board answered the appeal asserting that the evidence supported a

finding that the remaining three charges not relied on by the district court had

sufficient merit to support Dr. Cooper‟s dismissal. Additionally, the School Board

sought an award of “legal costs” against Dr. Cooper.

OPINION

The factual background concerning Dr. Cooper‟s actions giving rise to this

litigation is not seriously disputed. The question to be decided is whether Dr.

Cooper‟s action or actions were within his authority as superintendent of the

School District; and interwoven into resolution of that question is the substantial

effect 2012 La. Acts No. 1 (hereinafter referred to as Act 1) had in transferring

most of the authority previously held by the elected school boards across the state

to appointed superintendents. Dr. Cooper took office as superintendent before the

July 1, 2012 effective date of that legislative act; and was fired over two years after

the effects of the legislation were fully implemented.

While all four of the charges found to have merit by the School Board are

before us by virtue of the School Board‟s answer, we will first address the sole

charge found to have merit by the district court. We do so because an affirmance

of that action on the part of the district court would render moot consideration of

the other three charges.

The superintendent of a parish school system is a public officer elected by a

majority of a school board‟s members and whose position is for a fixed period but

subject to removal for cause. La.R.S. 42:1; La.Const. art. 8, ' 9(B); La.R.S. 17:54.

Louisiana Revised Statutes 17:54(B)(1)(b)(iii) sets forth the procedure for the

removal of a superintendent as follows:

The superintendent shall be retained during the term of a
contract; however, if the superintendent is found incompetent,
unworthy, or inefficient or is found to have failed to fulfill the terms
and performance objectives of his contract or to comply with school
2

board policy, then the superintendent shall be removed from office as
provided by Subsection C of this Section. Before the superintendent
can be removed during the contract period, he shall have the right to
written charges and a fair hearing before the board after reasonable
written notice.

A superintendent will only be removed from his position by a vote of two-thirds of

the entire membership of the school board. La.R.S. 17:54(C). Neither the

compliance or lack of compliance with the required procedure nor the sufficiency

of the vote of the School Board are at issue in this appeal.

Although La.R.S. 17:54(B)(1)(b)(iii) is silent on appellate procedure,

La.Const art. 1, ' 19 provides that “[n]o person shall be subjected to . . . forfeiture

of rights or property without the right of judicial review based upon a complete

record of all evidence upon which the judgment is based.” Thus, a superintendent,

who by law has a fixed contract, has “a property interest in his continued

employment and the due process rights that attach to such property interest.”

Anderson v. Orleans Parish Sch. Bd., 340 F.Supp.2d 716, 720 (E.D. La. 2004).

Accordingly, a superintendent is entitled to seek judicial review of a school board‟s

decision to terminate his employment.

We hold, by analogy, that the proper judicial standard of review to be

applied in this instance is the same as that afforded teachers pursuant to the

Teacher Tenure Law as set forth in Wise v. Bossier Parish School Board, 02-1525

(La. 6/27/03), 851 So.2d 1090. In Wise, the supreme court set out the judicial

review applicable to La.R.S. 17:443 of the Teacher Tenure Law to be as follows:

In Howell v. Winn Parish School Bd., 332 So.2d 822 (La.1976),
we held that judicial review of tenure proceedings must be limited to
an inquiry of whether the School Board complied with the statutory
formalities under Louisiana‟s Teacher Tenure Law and whether the
School Board‟s findings were supported by substantial evidence.
“ „Substantial evidence‟ has been defined as „evidence of such quality
and weight that reasonable and fair-minded men in exercise of
impartial judgment might reach different conclusions.‟ ” Coleman v.
3

Orleans Parish School Bd., 93-0916 (La.App. 4 Cir. 2/5/97), 688
So.2d 1312, 1315 (citing Wiley v. Richland Parish Sch. Bd., 476 So.2d
439, 443 (La.App. 2 Cir.1985)). In conducting such an examination,
the district court must give great deference to the school board‟s
findings of fact and credibility. Arriola v. Orleans Parish Sch. Bd.,
01-1878 (La.2/26/02), 809 So.2d 932, 941. Reasons for dismissal are
largely in the sound discretion of the school board. Gaulden v.
Lincoln Parish School Board, 554 So.2d 152, 157 (La.App. 2
Cir.1989), writ denied, 559 So.2d 126 (La.1990). Thus, the school
board‟s judgment should not be reversed in the absence of a clear
showing of abuse of discretion. Id. Generally, an abuse of discretion
results from a conclusion reached capriciously or in an arbitrary
manner. See Burst v. Bd. of Com’rs Port of New Orleans, 93-2069
(La.10/7/94), 646 So.2d 955, writ not considered, 95-265
(La.3/24/95), 651 So.2d 284. The word “arbitrary” implies a
disregard of evidence or of the proper weight thereof. A conclusion is
“capricious” when there is no substantial evidence to support it or the
conclusion is contrary to substantiated competent evidence. Coliseum
Square Association v. City of New Orleans, 544 So.2d 351, 360
(La.1989).

The district court may not substitute its judgment for that of the
school board or interfere with the school board‟s good faith exercise
of discretion. Howard [v. W. Baton Rouge Parish Sch.Bd., 00-3234
(La. 6/29/01)], 793 So.2d at 153; McLaughlin v. Jefferson Parish
School Board, 560 So.2d 585 (La.App. 5 Cir.1990); Sampson v.
Lincoln Parish School Board, 439 So.2d 454 (La.App. 2 Cir.1983).
The district court‟s responsibility in such a case is to determine
whether the school board‟s action was supported by substantial
evidence, or conversely, constituted an arbitrary decision and thus an
abuse of discretion. Howell, 332 So.2d at 825; Roberts v. Rapides
Parish School Board, 617 So.2d 187, 190 (La.App. 3 Cir.), writ
denied, 619 So.2d 1068 (La.1993). As with the district court, a court
of appeal may not reverse the decision of a district court unless it
finds the school board‟s termination proceedings failed to comply
with statutory formalities and/or the school board‟s findings were not
supported by substantial evidence. Wiley, 476 So.2d at 442; Cook v.
Natchitoches Parish Sch. Bd., 342 So.2d 702 (La.App. 3 Cir.), writ
denied, 345 So.2d 52 (La.1977); Mims v. West Baton Rouge Parish
Sch. Bd., 315 So.2d 349 (La.App. 1 Cir.1975).

Id. at 1094-95 (footnote omitted).

The passage of Act 1 turned the relationship between school boards and their

superintendents on its head. This was particularly true in the realm of hiring and

firing of personnel and the fixing of salaries. Prior to July 1, 2012, La.R.S.

17:81(A) provided the following with regard to the general powers of school
4

boards and their relationship with appointed superintendents:

(1) Each city and parish school board shall determine the
number of schools to be opened, the location of school houses, the
number of teachers to be employed, and select teachers and all other
certified personnel from recommendations made by the city or parish
superintendent as required by this Subsection. The boards shall have
authority to employ teachers by the month or by the year, and to fix
their salaries; provided that there shall be no discrimination as to sex
in the fixing thereof and provided further, that it is not the purpose of
this Section to require or direct the reduction of any salary, or salary
schedule, presently in force. The boards shall see that the provisions
of the state school law are complied with.

(2) Each city and parish school board shall select teachers and
all other certified personnel from recommendations made by the city
or parish superintendent regarding the hiring and placement of all
personnel for which state certification is required. It shall be the
responsibility of the superintendent to ensure that all persons
recommended have proper certification and are qualified for the
position. Nothing shall prevent a school board from rejecting the
recommendations made by the superintendent and requiring the
superintendent to submit additional recommendations.

(3) Each city and parish school board shall adopt policies for
and establish procedures which require a city or parish school
superintendent to:

(a) Consult with the principal regarding any
recommendations made by the superintendent for the
hiring or placement of any teacher or other certified
personnel at the school in which the principal is
employed. Any recommendations made by the principal
shall not be binding upon the superintendent but shall be
considered by the superintendent in making his
recommendations to the board.

(b) Consult with teachers regarding any
recommendations made by the superintendent for the
hiring or placement of a principal at the school in which
such teachers are employed. Any recommendations made
by teachers shall not be binding upon the superintendent
but shall be considered by the superintendent in making
his recommendations to the board.

(4) Any policies and procedures adopted by a city or parish
school board pursuant to the provisions of this Subsection shall be in
accordance with all laws, all state rules, regulations, and policies
relative to certification of teachers and other personnel, and any court
order or restrictions relative to desegregation.
5

After July 1, 2012, La.R.S. 17:81(A) provided:

(1) Each local public school board shall serve in a
policymaking capacity that is in the best interests of all students
enrolled in schools under the board‟s jurisdiction. When establishing
board policies, each board shall prioritize student achievement,
financial efficiency, and workforce development on a local, regional,
and statewide basis. When choosing a local superintendent of
schools, each board shall select a leader who shall prioritize student
achievement and act in the best interests of all students enrolled in
schools under the board‟s jurisdiction.

(2) Each local public school board shall determine the number
of schools to be opened, the location of school houses, and the number
of teachers and other school personnel to be employed. The local
school superintendent shall have authority to employ teachers by the
month or by the year, and to fix their salaries; provided that there shall
be no discrimination as to sex in the fixing thereof and provided
further, that it is not the purpose of this Section to require or direct the
reduction of any salary, or salary schedule, presently in force. The
local school superintendent shall see that the provisions of the state
school law are complied with.

(3) Each local public school board shall delegate authority for
the hiring and placement of all school personnel, including those for
which state certification is required to the local school superintendent.
It shall be the responsibility of the superintendent to ensure that all
persons have proper certification, as applicable, and are qualified for
the position.

(4) Each local public school board shall adopt policies for and
establish procedures which require a local school superintendent to:

(a) Delegate to the principal all decisions regarding
the hiring or placement of any teacher or other personnel
at the school in which the principal is employed, subject
to the approval of the local school superintendent.

(b) Consult with teachers prior to making any
decisions regarding the hiring or placement of a principal
at the school in which such teachers are employed. Any
recommendations made by teachers shall not be binding
upon the superintendent but shall be considered by the
superintendent when making employment decisions.

(5) Any policies and procedures adopted by a local public
school board pursuant to the provisions of this Subsection shall be in
accordance with all laws, all state rules, regulations, and policies
relative to certification of teachers and other personnel, and any court
order or restrictions relative to desegregation.
6

(6) The superintendent and the school principal shall make all
employment-related decisions based upon performance, effectiveness,
and qualifications as applicable to each specific position.
Effectiveness, as determined pursuant to R.S. 17:3881 through 3905,
shall be used as the primary criterion for making personnel decisions;
however, in no case shall seniority or tenure be used as the primary
criterion when making decisions regarding the hiring, assignment, or
dismissal of teachers and other school employees.

Thus, school boards evolved overnight from the hands-on operators of the

schools within their school district to serving “in a policymaking capacity.”

However, as to the single charge the district court found to have merit in this

litigation, we note that La.R.S. 17:81(U) remained unchanged by Act 1. That

portion of the statute reads today as it read before July 1, 2012: “Notwithstanding

the provisions of this Section, a city, parish, or other local public school board shall

retain all authority given by law to such boards to prescribe the duties and fix the

salaries of and hold tenure hearings for all employees of such boards, as

applicable.”

Analysis of Charge Upheld by the District Court

The charge found to have merit by the district court was the fourth of the

original five charges asserted against Dr. Cooper. That charge, as considered at the

School Board hearing, asserted “Unworthiness, Inefficiency, Breach of Contract,

Failure to Comply with Board Policy and State Law” on the part of Dr. Cooper,

and stated the specific reasons for those assertions as follows:

Dr. Cooper violated [School] Board policy and state law in
connection with the payment of selected principals in an amount in
excess of the Salary Schedule established by the School Board. In
2006 the Board adopted an indexing plan for the salaries of principals
and assistant principals. This plan was subsequently incorporated into
the various salary schedules approved and adopted by the [School]
Board, including the salary schedule for the year 2013-14 (the “Salary
Schedule”). Under this indexing plan (as incorporated in the Salary
Schedule and the approved budget), elementary school principals are
to be paid a salary equivalent to 203 days of work at the “daily rate of
pay;” middle school principals are to be paid a salary equivalent to
7

213 days of work at the “daily rate of pay;” and high school principals
are to be paid a salary equivalent to 224 days of work at the “daily
rate of pay.” However, Dr. Cooper, without prior School Board
approval, agreed to pay five principals at a rate of 244 days of work.
At its November 20, 2013 meeting the [School] Board refuse[d] to
approve the administrative contracts of any employee being paid for
244 days of work, and any others in excess of policy and pay grade
limits. To date, the additional payments received by these principals
has not been authorized, approved, or ratified by the School Board.

This charge involves five principles hired by Dr. Cooper with full School

Board approval for the 2013-2014 and 2014-2015 school years. However, what

was not approved by the School Board was Dr. Cooper‟s unilateral decision to

increase the authorized days of annual employment from either 203 or 224 days to
1
244 days.

It is undisputed that the School Board‟s Salary Schedule contemplated

paying principals on a daily basis based on the number of days worked in a given

school year and with a maximum number of days approved for each principal

level. It is also undisputed that the Salary Schedule set the maximum for high

school principals at 224 days per year and the maximum for elementary school

principals at 203 days per year; and that Dr. Cooper unilaterally added twenty days

to the maximum for high school principals and forty-one days to the maximum for

elementary school principals for the five principals he appointed to specific

schools. After the School Board became aware that the Salary Schedule had not

been followed in the case of these five appointments, it refused to retroactively

approve the deviation from the Salary Schedule.

Dr. Cooper acknowledges that he increased the days of employment to be

paid to the five principals he appointed, but denies that this action failed to comply

with School Board policy because he did not increase the daily pay for the

1
The five principal positions at issue included one high school principal and four
elementary school principals.
8

individual principals—he simply provided them the potential of being paid either

twenty or forty-one extra days. He testified at the School Board hearing that the

five principals at issue were hired by him to oversee five underperforming schools,

including three that were at risk of being taken over by the State of Louisiana for

academic failure. Because these schools needed exceptional, dedicated, and

talented leaders, he used his many years of experience as a school administrator to

seek out the individuals for these critical positions. While he readily recognized

that principals in the School System were paid by the day and hired specifically for

a maximum of 203, 213, or 224 days, he felt that he had the authority to expand

that maximum without seeking School Board approval. According to Dr. Cooper,

his authority for causing these five principals to draw more income than other

principals rests in the expanded authority provided him by Act 1, and specifically

La.R.S. 17:81(A)(2), which now provides the superintendent authority to employ

and fix the salaries of the teachers within the school system, as well as his

authority under La.R.S. 17:81(A)(6) to “make all employment-related decisions

based on performance, effectiveness, and qualifications as applicable to each

specific position.”

We find that while a superintendent now has expanded power in the

operation of school systems, that power is not absolute and is specifically limited

by other provisions of Act 1. The new legislation regarding the fixing of salaries

took the form of La.R.S. 17:418(A)(1) (emphasis added), which provides:

The governing authority of each local public elementary and
secondary school, the state special schools, and the schools and
programs administered through the special school district shall
establish salary schedules by which to determine the salaries to be
paid to teachers and all other school employees. The salaries as
provided therein shall be considered as full compensation for all work
required and performed within each employee‟s prescribed scope of
duties and responsibilities.
9

Thus, while a superintendent may fix salaries, his or her actions cannot violate the

salary schedules set up as a part of the policy making obligations of a school board.

The importance of the limitation was testified to at the School Board

hearing. Billy Guidry, the Executive Director and Chief Financial Officer of the

School System, testified that when he discovered the deviation from the Salary

Schedule created by Dr. Cooper‟s hiring of the five principals, he immediately

concluded that such a deviation would require School Board approval. The

importance of obtaining this approval, according to Mr. Guidry, was evidenced by

the fact that the School System auditor had “flagged” the overpayment as a matter

of concern.

Timothy Green, a Monroe, Louisiana certified public accountant and expert

in Louisiana school system accounting practices and financial matters, testified that

as a school auditor, any deviation from an established salary schedule is a concern

to him because the schedule deviation automatically creates a budget deviation as

well. In his capacity as an expert in Louisiana school system accounting practices

and finance, Mr. Green testified that while a superintendent has the authority to fix

teachers‟ salaries by determining the qualifications, experience, and other factors

to be applied, the ultimate fixing of those salaries must be in accordance with the

salary schedule approved by the local school board. In his expert opinion, nothing

in school system legal and accounting practices allows a deviation from the salary

schedule established by a school board.

As previously stated, the procedure applied in the School Board hearing

process under La.R.S. 17:54(B)(1)(b)(iii) is not at issue in this appeal.

Additionally, the “great deference to the school board‟s findings of fact” as set

forth in Wise, 851 So.2d at 1094, does not present a question for appellate review

10

because the facts giving rise to Dr. Cooper‟s termination as superintendent on this

charge are not disputed. The reviewing court “may not substitute its judgment for

that of the school board or interfere with the school board‟s good faith exercise of

discretion.” Id. The remaining question is simply whether the decision on this

issue at the School Board hearing is supported by “substantial evidence.” Id. We

find that it is so supported, and therefore, find no “clear showing of abuse of

discretion” on the part of the School Board in removing Dr. Cooper as

superintendent. Id.

In reaching this conclusion, we find, as obviously did the School Board, that

Dr. Cooper was aware of the particulars of the School Board policy as set forth in

the Salary Schedule for paying principals, he intentionally violated that policy, and

he failed to call his actions to the attention of the School Board until they became

an issue. While a superintendent does have expanded powers under Act 1, those

powers come with the responsibility of ensuring that the use of those powers do

not adversely affect other areas of importance—as in this case, the School System

budget.

Consideration of the Remaining Charges Rejected by the District Court

In its answer to the appeal, the School Board asks this court to review the

rejection by the district court of the remaining three charges found viable at the

School Board hearing. We decline to do so because, as pointed out by the School

Board in its brief to this court, the supreme court held in Wise, 851 So.2d at 1095,

that,

[T]here is no requirement in the applicable statute or the jurisprudence
that mandates all charges must be proven before termination may be
imposed. To the contrary, it is sufficient to support termination if any
one of the charges of willful neglect of duty against the tenured
teacher is sufficiently supported by the record.

11

Applying that same rationale to litigation involving the removal of a

superintendent, we find that the School Board‟s successful prosecution of the one

charge herein requires us to go no further. To do so would be to render an

advisory opinion on the remaining three issues.

Consideration of the Costs Issue

In its answer to appeal, the School Board also seeks a judgment assessing

the “legal costs” of the district court proceedings against Dr. Cooper. We interpret

this request for relief, not in the context of a request for attorney fees, but in an

effort to properly assess the cost of court associated with the district court

proceedings. We reach this conclusion because we note that even though the

School Board was successful in defending the School Board hearing judgment, the

district court did not address the cost of court assessment in the October 19, 2015

judgment. To that extent, we assess all costs of the district court litigation to Dr.

Cooper.

DISPOSITION

For the foregoing reasons, we affirm the judgment rendered in the Lafayette

Parish School Board hearing of November 6, 2014, terminating Dr. Pat Cooper as

the Lafayette Parish School District Superintendent of Schools, as well as the

October 19, 2015 judgment of the Fifteenth Judicial District Court affirming the

November 6, 2014 judgment. We assess all costs of the proceedings in the

Fifteenth Judicial District Court and all costs of the proceedings in this court to Dr.

Pat Cooper.

AFFIRMED.

12

NUMBER 16-169 CA

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

PAT COOPER

VERSUS

LAFAYETTE PARISH SCHOOL BOARD

CONERY, J., dissents and assigns reasons.

Respectfully, I dissent.

Dr. Cooper’s firing by the Lafayette Parish School Board (the Board) was

upheld by the trial court on the basis that he hired five principals to work in failing

schools and paid them more days than the Board had authorized under its approved

formula set out in its “salary schedule.” (Exhibit 11) The majority affirmed the

trial court’s decision.

The salary schedule at issue clearly sets forth that the salaries are to be

computed based on a 244 day year. For high school principals, the schedule does

say that the salary is based on an 11 month schedule, or 224 days. However, there

is nothing in the salary schedule that mandates that principals cannot be paid more

or less than 224 days. There is no “shall” language in the salary schedule. Indeed,

the legislature made it clear in Act 1 that after July 1, 2012, local school boards are

to establish broad policies and superintendents are to administer the operation of

the schools and make decision about all school personnel, as set forth in La.R.S.

17:81(A) (emphasis added).

(1) Each local public school board shall serve in a policymaking
capacity that is in the best interests of all students enrolled in schools
under the board’s jurisdiction. When establishing board policies,

each board shall prioritize student achievement, financial
efficiency, and workforce development on a local, regional, and
statewide basis. When choosing a local superintendent of schools,
each board shall select a leader who shall prioritize student
achievement and act in the best interests of all students enrolled in
schools under the board’s jurisdiction.

(2) Each local public school board shall determine the number of
schools to be opened, the location of school houses, and the number of
teachers and other personnel to be employed. The local school
superintendent shall have authority to employ teachers by the
month or by the year, and to fix their salaries; provided that there
shall be no discrimination as to sex in the fixing thereof and provided
further, that it is not the purpose of this Section to require or direct
the reduction of any salary, or salary schedule, presently in force.
The local school superintendent shall see that the provisions of the
state school law are complied with.

(3) Each local public school board shall delegate authority for the
hiring and placement of all school personnel, including those for
which state certification is required to the local school
superintendent. It shall be the responsibility of the superintendent to
ensure that all persons have proper certification, as applicable, and are
qualified for the position.

Dr. Cooper testified in the termination hearing that he followed the dictates

of the statute and did what he thought was essential to “prioritize student

achievement” after consulting with the then board attorney and State Department

of Education.

Since one of the main purposes of Act 1 was to give the superintendent and

not the school board the authority to hire and fire personnel and administer the

school system for the betterment of the students, it’s hard to argue against the

proposition that the superintendent was doing just that when he decided to recruit

highly specialized principals to try to turn around failing schools and elected to

have them work twenty more days per year than ordinary principals, but at the

same daily rate approved in the salary schedule, in order to try to turn those

schools around.

2

Indeed, La.R.S. 17:54 mandates that in schools with performance letter

grades of “C,” “D,” or “F,” “school superintendents must state performance targets

relative to student achievement.” Dr. Cooper’s testimony that he consulted with

the academic community of the affected schools, the human resources director, the

then school board attorney and the State Department of Education before making

the decision to offer the principals a salary based on a full 244 day school year to

be computed in accordance with the same daily rate in the salary schedule was

unrebutted. The record further shows that he met with Mr. Billy Guidry, the

Board’s Chief Financial Officer, at some point after he hired the principals. Mr.

Guidry recommended that Dr. Cooper bring this issue to the Board for their

approval, even though such approval, arguably, was not technically necessary

under the broad powers given to superintendents by Act 1.

The old adage that “you get what you pay for” applies here. If you want a

highly qualified principal to guide a failing school in danger of being taken over by

the state, it is certainly in the best interest of the students involved, as well as the

school system, to hire someone willing to work 244 days at the same daily rate that

everyone else is getting, just twenty work-days more than other principals. No one

was receiving more money per day, no evidence of favoritism was involved, and

no one is harmed by such a plan. In my view, Dr. Cooper was fired because some

members of the board obviously did not approve of Act 1 expanding the powers of

the superintendent at the expense of the board’s traditional power over hiring and

firing.

The Louisiana Supreme Court in Louisiana Federation of Teachers v. State,

14-691 (La. 10/15/14), 171 So.3d 835, upheld the constitutionality of Act 1. The

court specifically rejected the plaintiff’s constitutional challenge to the delegation
3

of administrative power to local superintendents in the above statutes:

In addition, plaintiffs argue that La.R.S. 17:81(A)(2) and (3)
which delegate the administrative authority to local superintendents,
“constitutes a significant transfer of power and authority,” and is
therefore either a separate object or not necessary to carry out the
object of improving elementary and secondary education through
tenure reform and performance standards based on effectiveness.
Plaintiffs argue these provisions are not necessary because the school
boards could have retained their administrative authority and utilized
effectiveness in making employment decisions. Again, the
legislature felt that superintendents were in a better position to
make employment decisions based on effectiveness; thus, the
transfer of this administrative authority was necessary to
accomplish this.

Id. at 849 (emphasis added).

There is additional precedent for persons working a 244 day school year in a

recent case involving the Lafayette School System. Principals at charter schools in

Lafayette Parish were being paid on a 244 day per year salary schedule. A panel of

our court in Aillet v. Lafayette School Board, 14-585 (La. App. 3 Cir. 12/10/14),

154 So.3d 768, writ denied, 15-409 (La. 5/1/15), 169 So.3d 376, held in favor of a

teacher in a charter school who had been reassigned and whose salary had been

reduced based on a reduction in days worked. Our court held that the school board

had to maintain her 244 day per year day schedule under the circumstances of that

case. Like charter schools, failing schools require more attention and more work

days. The school board had earlier recognized that by allowing charter school

teachers to be paid based on a 244 day year.

In Louisiana Federation of Teachers, 171 So.3d at 839, the supreme court

specifically mentioned that La. R.S. 17:81(A)(6):

[I]s a new provision requiring that superintendents and principals
make all employment-related decisions based upon “performance,
effectiveness, and qualifications as applicable to each specific
position,” and requires that effectiveness “shall be used as the primary
criterion for making personnel decisions” and prohibits “seniority or
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tenure” from being used as the primary criterion. La.R.S. 17:81(P)(1)
removes the requirement that personnel decisions are to approved or
disapproved by school boards.

It’s important to note that after the assistant district attorney representing the

Board agreed with Dr. Cooper’s interpretation of the statutes at issue, the Board

fired the district attorney’s office from representing them and hired “outside

counsel” to pursue these charges against Dr. Cooper. Dr. Cooper was hired on a 5-

4 vote, and he claimed that from the start of his tenure, the four dissenting board

members wanted to fire him and seized upon this issue, as well as a few other

relatively minor issues, to provoke a termination hearing. Dr. Cooper then filed a

lawsuit against several Board members prior to the Board termination hearing

seeking to recuse these board members from participating and voting at the

termination hearing. Dr. Cooper claimed that the named board members were

biased and prejudiced against him and could not impartially rule on the complaints.

The trial judge eventually denied the recusal motion in Pat Cooper vs. Lafayette

Parish School Board, et al., Docket No. 2014-5116 G, Fifteenth Judicial Court,

Parish of Lafayette, Louisiana.

However, a review of his well-written opinion leaves ample room for

argument that this case was never about the five principals and other alleged

“violations” by Dr. Cooper, but rather was about a clash of philosophy and

personality. Some Board members obviously did not like Act 1 and its broadening

of the school superintendent’s powers and wanted to “ignore it” according to Dr.

Cooper. Others felt that Dr. Cooper was arrogant, overly contentious, and

somewhat dictatorial in his methods without properly respecting what had been the

“traditional” role of the Board. Dr. Cooper’s alleged broad and “elastic”

interpretation of Act 1 coupled with his alleged attitude and demeanor served to
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fuel the conflict.

Based on a review of the entire record, I do not believe the Board succeeded

in carrying its burden of proving reasons for termination. Act 1 is remedial

legislation and is to be broadly construed. The Board’s decision, in my view, was

based more on politics and less on law. The facts are not really in dispute.

Because neither the salary schedule or anything else specifically prohibited Dr.

Cooper from construing the broad powers given to him by Act 1 to offer incoming

principals in failing schools a salary otherwise computed in accordance with the

Board’s salary schedule, but based on a 244 day work year instead of a 224 day

work year, I would construe the statute broadly in accordance with the legislature’s

intent in implementing this remedial legislation to improve our schools. Dr.

Cooper, in my view, acted in accord with that legislative policy and intent as his

actions were all intended to benefit and enhance school performance. No fraud,

favoritism, nepotism, or any other ill practice was shown.

The Board is responsible for the budget, and Dr. Cooper’s actions without

prior board approval may have had some minimal impact on the budget. Some

Board members could legitimately have been offended by Dr. Cooper’s actions in

failing to get prior Board approval. They have a point. Indeed, it would have been

prudent and, perhaps, advisable for him to do so. The Board’s chief financial

officer, Mr. Guidry did recommend that he get Board approval for the budgeting

adjustment, but only after he had hired the principals in question. Mr. Guidry also

testified Dr. Cooper was not able to bring the issue to the Board as a part of the

budget process as planned, as some of the other principals apparently got wind of

the fact that Dr. Cooper was paying these five principals for more days and

complained to some of the Board members who had initially voted against Dr.
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Cooper’s hiring. Despite the fact that Dr. Cooper had not sought prior Board

approval, after learning of Dr. Cooper’s proposal, the issue came before the Board,

and the Board subsequently approved the payment of the extra days for the five

principals. Notwithstanding what should have been done, what Dr. Cooper did do

was within his authority as school superintendent. I would find that it was an error

of law to terminate Dr. Cooper based on the plain wording of La.R.S. 17:81(A).

Interpretations of law are for courts to decide. The manifest error rule

providing that we give “deference” to the Board’s decision under the

circumstances of this case does not apply. Indeed, the trial court’s earlier decision

in the “recusal case,” as well as the record as a whole, convinces me that those

voting for Dr. Cooper’s termination were not in “good faith” and were not “acting

for the betterment of the students.” Wise v. Bossier Parish School Bd., 02-1525

(La. 6/27/03), 851 So.2d 1090, 1094. No deference is due their decision in my

view. I agree with the majority that we review this case de novo, but respectfully

disagree with the majority’s conclusion.

I would likewise find that the trial court’s decision to dismiss the remaining

three charges against Dr. Cooper after a full trial on the merits should be affirmed

for the following reasons.

Charge Number One

“Charge No. 1” stated that Dr. Cooper refused to terminate Thad Welch, a

“Special Assistant to the Superintendent,” on February 6, 2013, after he was

appointed by the Board on March 27, 2012, and had served in the position for

almost one year. Mr. Welch was hired as a maintenance supervisor and was

responsible to oversee cleaning and maintenance issues at the Lafayette Parish

schools. The trial court ruled on the record in favor of Dr. Cooper, and found that
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Act.1, which became effective on July 1, 2012, applied and that Dr. Cooper “was

following the Law.” Further, the trial court when questioned if any “deference”

was given “to the finding of the school board on that charge,” replied, “Yes, there

is. That’s my ruling. It was an error. They did not follow the law on that.” I

would affirm the trial court’s ruling on this issue.

Charge Number Two

“Charge No. 2” stated that Dr. Cooper refused to terminate Mr. Welch. The

Board had previously approved the 2012-2013 budget containing a line item

authorizing the new position held by Mr. Welch. On March 20, 2013, the Board

then reversed itself and eliminated the line item for Mr. Welch’s position from the

approved budget. This action by the Board in de-funding Mr. Welch’s position

would have resulted in his de-facto termination. Dr. Cooper then reallocated

budgeted monies in the same cost category, the Maintenance Department, to

continue to pay Mr. Welch, who remained in his position as special assistant to the

superintendent.

The Board argued that Dr. Cooper should have presented an amendment to

the Board for approval on the issue. Instead, Dr. Cooper “took money from some

place else and paid the gentleman. That was inappropriate. For that reason, he

was terminated as having violated Board Policy DCI and State law.”

The trial court ruled on Charge No. 2 in favor of Dr. Cooper and stated on

the record, “And the Board erred in that decision in terminating him and finding

that he had violated the contract and this policy by moving that budget item, that

Cooper had violated this policy and the contract.”

Again, the Thad Welch issue was, according to Dr. Cooper, an excuse, albeit

a flimsy one, to terminate Dr. Cooper because of a difference of philosophy about
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how Act 1 should be interpreted. The Board’s basis for Dr. Cooper to terminate

Mr. Welch, rejected by the trial court, was that Mr. Welch did not have a high

school diploma. The record showed, however, that when the applicant’s for the

position were interviewed and “scored,” even after deducting points for Mr.

Welch’s lack of a diploma, he still scored higher than all of the other applicants.

After a thorough review of the record, by all accounts Thad Welch was doing an

outstanding job and there was no cause for terminating him. I would affirm the

trial court’s decision on this issue as well.

Charge Number Three

“Charge No. 3” was thoroughly discussed by the trial court with counsel

over the two days of the hearing. Charge No. 3 involved the hiring and payment of

Dr. Cooper’s personal attorney. Mr. Cooper hired counsel to represent him after

receiving a letter of reprimand from the Board over his hiring and then retaining

Thad Welch. Charge No. 3 stated that an outside attorney was hired in

“consideration of legal action challenging the reprimand of Cooper over the Welch

situation.” The bill was later paid at Dr. Cooper’s direction and without Board

approval.

The focus of the argument on Charge No. 3 was the authority granted to Dr.

Cooper under the terms of his contract, under the heading “PROFESSIONAL

LIABILITY,” specifically, Section 9(B), which provides:

If, in the good faith opinion of SUPERINTENDENT, conflict
exists as regards the defense to such a claim between the legal
position of SUPERINTENDENT AND THE LEGAL POSITION OF
District, the SUPERINTENDENT may engage counsel in which event
BOARD shall indemnify the SUPERINTENDENT for the costs of
legal defense as permitted by state law.

The Board argued that Section 9 was an indemnity provision and did not

9

apply to a dispute between the Superintendent and the Board. Nonetheless,

Section 9(C) negated the terms of Section 9(B), which only applied to a

disagreement between the Superintendent and the Board in a case involving a third

party. Section 9(C) provides:

BOARD shall not, however, be required to pay any costs of any
legal proceedings in the event Board and SUPERINTENDENT have
adverse interests in such litigation, except as stated above.

The trial court also ruled in favor of Dr. Cooper on Charge No. 3 on the

record. The trial court issued a preliminary ruling on the first day of the hearing

and found that the terms of the contract, and more specifically Section (B),

controlled. On this issue the trial court correctly found that:

And so, if someone from the School Board and not Mr. Cooper
drafted the contract, and Paragraph 9 (B) is clear as what it is, the (c)
somewhat conflicts with (b), but any ambiguity would be resolved in
favor -- or against the drafter, which would be in favor of Mr. Cooper,
so therefore the legal fees would have to be paid by the Board.

When questioned by counsel for the Board if the court intended to “review

the testimony and the opinions of the various lawyers that are contained in the

transcript,” the trial court replied, “I don’t decide cases by a majority vote of what

lawyers think on the issue. I look at what the standard of the law is, and the

contract is very clear. I made my statements about contract law, so that’s my

ruling.” The trial court continued and concluded, “Alright so the Board was

incorrect in their interpretation of that law.”

Counsel for the Board then raised the issue that there was no evidence in the

record as to the drafter of the contract between Dr. Cooper and the Board. As Dr.

Cooper was allowed to testify on issues not previously presented, he was available

to clarify this issue. When Dr. Cooper was asked by the court if any changes were

10

made to parts (A), (B), and (C) contained in Section 9, Professional Liability, he

responded “No sir.” The court further stated, “That was drafted by the School

Board, presented to you, and you signed it; as per that section of the contract, you

made no changes or recommendations?” To which Dr. Cooper responded, “No

changes.” The trial court then stated, “So, he was not the drafter, and so my ruling

is the same.”

Counsel for the Board then requested and was granted an opportunity by the

trial court to rebut the testimony of Dr. Cooper that he was not the drafter of the

contract. This issue was addressed again on the next day and the Board was unable

to refute the testimony of Dr. Cooper that the Board was the drafter of the contract

and more specifically Section 9. The trial court then again held that Dr. Cooper

was improperly terminated for submitting the bill for legal services to the Board.

Based on the terms of the contract and the evidence, the trial court again ruled the

contract was drafted by the Board and was to be construed against the Board. The

trial court stated that the question of whether the bill “should be paid is not in front

of me,”1 and once again stated, “so my ruling remains the same on Mr. Roy’s legal

bill.” I would affirm that ruling as well.

CONCLUSION

I would, therefore, affirm the decision of the trial court as to Charges One,

Two, and Three and reverse and remand as to Charge Four. As it is no longer

possible to reinstate Dr. Cooper to his former position as superintendent, I would

remand that issue to the trial court for proper assessment of damages and attorney

fees.

1
Pending at the time of this hearing was another suit by the Board against Dr. Cooper for reimbursement of
the $5,106.21 payment to Dr. Cooper’s private attorneys.

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