IN THE SUPREME COURT
Supreme Court No. 20080071
Northeast Judicial District,
Petitioner and Appellant
Respondent and Appellee
Respondent and Appellee
ON APPEAL FROM A MEMORANDUM OPINION AND ORDER
Northeast Judicial District,
The Honorable Donovan Foughty
Appellant, pro se
STATEMENT OF FACTS
Job Service make its decision based solely on
“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…would result in her termination of her employment by deliberately failing to comply with directions or instructions from her employer. It is reasoned based on the diverse number of people who approached the employer and the tribal chairperson that the information relayed to the employer concerning the claimant’s insubordination was true and accurate. This is held despite the claimant’s denial. The result might have been different if there were only one or two children who complained. 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…A teacher who is non-renewed during the school year is viewed as a dismissal. (Id, Decision, p. 344)
A nonrenewal is not the same as dismissal.
II. Job Service decision that I had committed misconduct and then denied my unemployment benefits was fundamentally unfair and denied my fundamental right to due process.
Mr. Clinton stated, “The hearing is the result of a timely appeal filed by the claimant from 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 Warwick Public School District. If she were discharged, the employer would have to show that she committed acts of misconduct in connection with the work, or she would have to demonstrate good cause attributable to the employer for leaving.” (Record, p. 56)
Mr. Clinton, in his decision, incorrectly summarized the facts, totally ignoring the fact that I had just been fired for having informed the School Board that the School had not reported a rape as required by law. (Id, Exhibit 2, p. 251; Ex 3, p.253-255; Ex 4, p. 257-261; Ex 14, p. 317-319, signed affidavit with district court) Mr. Clinton erroneously found that “on
III. Job Service ruled that the Notice of Nonrenewal the Notice of Discharge, which is contrary to
Job Service failed to establish my last day of work. (Id, p. 99-101) Job Service erred in establishing the reason I was no longer employed, and made a decision contrary to North Dakota teacher dismissal laws.
When asked by Mr. Clinton for the reason why I was no longer employed, Mr. Guthrie replied: “Was she fired? She was nonrenewed.” (Id, p. 99, line 15)
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 25th of May.  (Id, p. 100, line 18-19)
Mr. Thune admitted that I was nonrenewd, and that “the School Board never went through a discharge hearing, which is a separate section of the NDCC, Section 15.1-15-06, and the discharge would be more consistent with the general meaning of firing because that means that means that the contract is over and we’re not paying you any more…..” (Id, p. 101, line 8-11)
MR. CLINTON: I am going to make an interim finding unless Mr. Bachrach objectures, that I will consider the Notice of Nonrenewal the Notice of Discharge. (Id, p. 102, line 11, 12)
This ruling is in direct contradiction to teacher dismissal law, NDCC 15-47-38, which clearly delineates that nonrenewal and dismissal are two separate procedures. Mr. Clinton’s reason for this ruling is capricious, nonsensical, and is not supported by law. (NDCC 15-47-38) “…events of subsequent discharge are gonna be given much less significance than those that lead up to the time of separation. Did the Board vote, the Board voted. Don’t I have the minutes of that, Mr. Guthrie in one of these things, the nonrenewal?” (Record, p. 103, line 8-11)
MR. THUNE: The Executive Session minutes are sealed…(Id, line 14)
MR. CLINTON: I was thinking of the April 11th, 07, minnutes. (line 17)
MR. THUNE: And, that is April 11th minutes from Exhibit D that would in essence be the last day that she was actually employed, with nonrenewals that notice came out on March 28th, Exhibit C, her employment normal employment continues. It continues till the end of the school year. [She] just ha[d] been told that when the school year is over [she] doesn’t have a job again. (Id, p. 103, line 18-22)
MR. CLINTON: “…Reduction in Force…I can understand how that works even under the usual common law employee distinction….I thought that might limit the scope of the hearing if I was able to ascertain a date. Please, Mr. Bachrach, your opportunity to examine Mr. Guthrie. (Id, p. 104, line 1-8)
Mr. Clinton has demonstrated that he doesn’t understand how teacher dismissal laws work, that Reduction in Force does not remotely apply, that common law employee distinction does not apply.
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, line 15-16)
MR. CLINTON: We’ll go there later, Mr. Bachrach. (Id, line 17)
But, Mr. Clinton never did go there. The law says that the State shall not deprive any person of life, liberty, or property, without due process of the law." The two concepts of this fourteenth amendment that most apply to teachers when dealing with issues of due process are "liberty and property".
If the first year teacher is dismissed during the year of the contract, then notice, a hearing, and reasons for dismissal are required. There is an important difference between a dismissal during the term of the contract and a mere non-renewal. (NDCC 15-47-38(2)) My reputation was stigmatized by the misconduct charge. Both my property and liberty were egregiously violated by this cavalier assignment of misconduct to my teaching credentials and my permanent record.
Warwick, ND 58381
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 Reply Brief was mailed to respondents on
Tiffany Johnson Pearce & Durick
Douglas A. Bahr Solicitor General
 I falsely believed that Mr. Riedinger was deceiving Mr. Guthrie. I did not fully realize that Mr. Guthrie was spearheading the retaliation against me for having written to the School Board, informing them that WPS Admininistration had not reported a rape, until I had an opportunity to finally study the transcript of the hearing. (Id, Exhibit 2, p. 251; Ex 3, p.253-255; Ex 4, p. 257-261)
 15-38.2-04. Complaints against teacher. Any complaint made against a teacher or person for whom the teacher is administratively responsible, by any parent, student, or other person, must promptly be called to the attention of the teacher if said complaint is to be placed in the teacher's personnel file.
 Section 28-32-06, N.D.C.C., provides:
"Evidence to be considered by agency.--The admissibility of evidence in any proceeding before an administrative agency shall be determined, insofar as circumstances will permit, in accordance with the practice in the district court. An administrative agency, or any person conducting an investigation or hearing for it, may waive the usual common-law or statutory rules of evidence if such waiver is necessary to ascertain the substantial rights of all the parties to the proceeding, but only evidence of probative value shall be accepted. All objections offered to evidence shall be noted in the record of the proceeding. No information or evidence except such as shall have been offered and made a part of the official record of the hearing shall be considered by the administrative agency, except as otherwise provided in this chapter." [Emphasis added.]