Gary A. Wellner v. Minnesota State Junior Coll. Bd., 487 F.2d 153 (8th Cir. 1973). · Go Syfert
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Gary A. Wellner v. Minnesota State Junior Coll. Bd., 487 F.2d 153 (8th Cir. 1973). Cases Citing This Book View Copy Cite
84 citation events (1 in the last 25 years) across 28 distinct courts.
Strongest positive: Dorothy Joseph v. New York City Board of Education (ca2, 1999-03-16)
Treatment trajectory · 1973 → 2026 · click a year to view as-of
1973 1999 2026
Top citers, strongest first. 27 distinct citers. How cited ↗
discussed Cited as authority (rule) Dorothy Joseph v. New York City Board of Education
2d Cir. · 1999 · confidence medium
Findings with regard to the existence of discriminatory intent are findings of fact, Pullman-Standard v. Swint, 456 U.S. 273, 287-90 , 102 S.Ct. 1781 , 72 L.Ed.2d 66 (1982), as are findings of discrimination, Anderson v. Bessemer City, 470 U.S. 564, 573 , 105 S.Ct. 1504 , 84 L.Ed.2d 518 (1985), and causation, see, e.g., Wellner v. Minnesota State Junior College Board, 487 F.2d 153, 156 (8th Cir.1973), and such findings may not be set aside unless they are clearly erroneous, see, e.g., Anderson v. Bessemer City, 470 U.S. at 573 , 105 S.Ct. 1504 ; Pullman-Standard v. Swint, 456 U.S. at 290 , 102…
discussed Cited as authority (rule) Johnson v. Independent School District No. 281 (2×)
Minn. Ct. App. · 1992 · confidence medium
See Roth, 408 U.S. at 573 n. 12, 92 S.Ct. at 2707 n. 12 (“the purpose of such notice and hearing is to provide the person an opportunity to clear his name”); Wellner v. Minnesota State Junior College Bd., 487 F.2d 153, 156 (8th Cir.1973) (holding that plaintiff had a right to a hearing in which to refute stigmatizing charges of racism).
cited Cited as authority (rule) Bennett v. City of Redfield
Iowa · 1989 · confidence medium
See Loudermill, 470 U.S. at 542 , 105 S.Ct. at 1493 , 84 L.Ed.2d at 503-04 ; Wellner v. Minnesota State Junior College Bd., 487 F.2d 153, 156-57 (8th Cir. 1973).
cited Cited as authority (rule) Leroy J. Matherne, Cross-Appellant v. Charles C. Wilson, Cross-Appellees
5th Cir. · 1988 · confidence medium
See Olshock v. Village of Skokie, 541 F.2d 1254, 1260 (7th Cir.1976); Wellner v. Minnesota State Junior College Board, 487 F.2d 153, 157 (8th Cir.1973); but see Brown v. A.J.
discussed Cited as authority (rule) Bristol Virginia School Board v. Quarles
Va. · 1988 · confidence medium
Cir. 1975) (fraud and dishonesty); Lombard v. Board of Education of City of New York, 502 F.2d 631, 637 (2d Cir. 1974) (mental illness), cert. denied, 420 U.S. 976 (1975); McNeill v. Butz, 480 F.2d 314, 319-20 (4th Cir. 1973) (fraud); Suarez v. Weaver, 484 F.2d 678, 679, 681 (7th Cir. 1973) (possible violation of narcotics laws); Wellner v. Minnesota State Junior College Board, 487 F.2d 153, 156 (8th Cir. 1973) (manifest racism).
discussed Cited as authority (rule) United States of America, Yonkers Branch--National Association for the Advancement of Colored People, Plaintiffs-Intervenors-Appellees v. Yonkers Board of Education City of Yonkers and Yonkers Community Development Agency, City of Yonkers and Yonkers Community Development Agency, Third Party v. United States Department of Housing and Urban Development and Secretary of Housing and Urban Development, Third Party
2d Cir. · 1987 · confidence medium
A finding of discriminatory intent is a finding of fact, Pullman-Standard v. Swint, 456 U.S. 273, 287-90 , 102 S.Ct. 1781, 1789-91 , 72 L.Ed.2d 66 (1982), as are findings of discrimination, Anderson v. City of Bessemer City, 470 U.S. at 573 , 105 S.Ct. at 1511 , and causation, e.g., Wellner v. Minnesota State Junior College Board, 487 F.2d 153, 156 (8th Cir.1973). 218 In accordance with the above principles, if the district court's findings as to the existence of segregation in fact, the existence of segregative intent, and the existence of a causal relationship between the two are permissible…
discussed Cited as authority (rule) United States v. Yonkers Board of Education
2d Cir. · 1987 · confidence medium
A finding of discriminatory intent is a finding of fact, Pullman-Standard v. Swint, 456 U.S. 273, 287-90 , 102 S.Ct. 1781, 1789-91 , 72 L.Ed.2d 66 (1982), as are findings of discrimination, Anderson v. City of Bessemer City, 470 U.S. at 573 , 105 S.Ct. at 1511 , and causation, e.g., Wellner v. Minnesota State Junior College Board, 487 F.2d 153, 156 (8th Cir.1973).
discussed Cited as authority (rule) Hogue v. Clinton (2×) also: Cited "see"
8th Cir. · 1986 · confidence medium
When, however, procedural due process is violated such that an employee's property interest in employment is invaded, Carey is inapposite and an employee should be entitled to equitable relief in the amount of backpay consistent with our holding in Wellner v. Minnesota State Junior College Board, 487 F.2d 153, 157 (8th Cir.1973).
discussed Cited as authority (rule) Hogue v. Clinton
8th Cir. · 1986 · confidence medium
When, however, procedural due process is violated such that an employee’s property interest in employment is invaded, Carey is inapposite and an employee should be entitled to equitable relief in the amount of backpay consistent with our holding in Wellner v. Minnesota State Junior College Board, 487 F.2d 153, 157 (8th Cir.1973).
discussed Cited as authority (rule) Dee Swain v. Board of Trustees
N.D. Ohio · 1979 · confidence medium
Codd v. Velger, 429 U.S. 624 , 97 S.Ct. 882 , 51 L.Ed.2d 92 (1977) (allegation of a suicide attempt by a probationary police officer will foreclose employment as a policeman and, thus, hearing is required); Greenhill v. Bailey, 519 F.2d 5 (8th Cir. 1975) (allegations of lack of “intellectual ability” against dismissed medical student stigmatizes the student and entitles the student to informal due process hearing); United States v. Briggs, 514 F.2d 794, 798 (5th Cir. 1975) (accusation that one has committed a serious felony may impinge upon employment opportunities); Lombard v. Board of Ed…
discussed Cited as authority (rule) Giordano v. Roudebush
S.D. Iowa · 1978 · confidence medium
Support for this position is found in the Per Curiam ruling on the petition for rehearing in Wellner v. Minnesota State Junior College Board, 487 F.2d 153, 157 (8th Cir. 1973): Wellner was improperly discharged because he was not accorded an appropriate hearing.
discussed Cited as authority (rule) Jon Tom Staton v. James K. Mayes (2×)
10th Cir. · 1977 · confidence medium
These charges were made publicly and might seriously damage plaintiff's standing and associations in his community and affect his good name and reputation. 6 See id. at 573 , 92 S.Ct. 2701 ; Wellner v. Minnesota State Junior College Board, 487 F.2d 153, 155-56 (8th Cir.); Huntley v. Community School Board of Brooklyn, 543 F.2d 979, 985 (2d Cir.).
discussed Cited as authority (rule) Decker v. North Idaho College
9th Cir. · 1977 · confidence medium
Skehan v. Board of Trustees, 501 F.2d 31, 40 (3d Cir. 1974), vacated on other grounds, 421 U.S. 983 , 95 S.Ct. 1986 , 44 L.Ed.2d 474 (1975), opinion on remand, 538 F.2d 53, 63 (3d Cir. 1976); Wellner v. Minnesota State Junior College Board, 487 F.2d 153,157 (8th Cir. 1973); see Vitarelli v. Seaton, 359 U.S. 535, 545, 546 , 79 S.Ct. 968 , 3 L.Ed.2d 1012 (1959); Greene v. United States, 376 U.S. 149,161-62 , 84 S.Ct. 615 , 11 L.Ed.2d 576 (1964); cf. Mt.
discussed Cited as authority (rule) A. N. Decker v. North Idaho College
9th Cir. · 1977 · confidence medium
Skehan v. Board of Trustees, 501 F.2d 31, 40 (3d Cir. 1974), vacated on other grounds, 421 U.S. 983 , 95 S.Ct. 1986 , 44 L.Ed.2d 474 (1975), opinion on remand, 538 F.2d 53, 63 (3d Cir. 1976); Wellner v. Minnesota State Junior College Board, 487 F.2d 153, 157 (8th Cir. 1973); see Vitarelli v. Seaton, 359 U.S. 535, 545, 546 , 79 S.Ct. 968 , 3 L.Ed.2d 1012 (1959); Greene v. United States, 376 U.S. 149, 161-62 , 84 S.Ct. 615 , 11 L.Ed.2d 576 (1964); cf. Mt.
discussed Cited as authority (rule) Sidney Salomon, Jr. v. Crown Life Insurance Company, Crown Life Insurance Company v. Sidney Salomon, Jr. & Associates, Inc., Sidney Salomon, Jr. v. Crown Life Insurance Company
8th Cir. · 1976 · confidence medium
In addition, as this court stated in Cole v. Neaf, 334 F.2d 326, 329 (8th Cir. 1964): 34 We have repeatedly and consistently held, at least subsequent to the Supreme Court's decision in Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291 , 80 S.Ct. 1190 , 4 L.Ed.2d 1218 , that the clearly erroneous standard applies to reasonable inferences to be drawn from stipulated or undisputed facts and that it is for the trial court rather than this court to draw legitimate and permissible inferences. 35 (Citations omitted.) See Jarvis v. Montgomery Ward and Co., 525 F.2d 1267 (8th Cir. 1975…
discussed Cited as authority (rule) Salomon v. Crown Life Insurance
8th Cir. · 1976 · confidence medium
(Citations omitted.) See Jarvis v. Montgomery Ward and Co., 525 F.2d 1267 (8th Cir. 1975); Moorhead Construction Co. v. City of Grand Forks, 508 F.2d 1008, 1012 (8th Cir. 1975); Wellner v. Minnesota State Junior College Board, 487 F.2d 153,156 (8th Cir. 1973); Jackson v. Hartford Accident and Indemnity Co., 422 F.2d 1272 (8th Cir.), cert. denied, 400 U.S. 855 , 91 S.Ct. 86 , 27 L.Ed.2d 92 (1970).
cited Cited as authority (rule) Stetson v. Board of Selectmen of Carlisle
Mass. · 1976 · confidence medium
App. 41, 45 (1973). 8 Wellner v. Minnesota State Junior College Bd., 487 F.2d 153, 156 (8th Cir. 1973).
discussed Cited as authority (rule) Bernard H. Greenhill v. Ray v. Bailey
8th Cir. · 1975 · confidence medium
The District Court shall order appellees to conduct an appropriate administrative hearing and shall either direct reinstatement of appellant pending such hearing, see Wellner v. Minnesota State College Board, supra, 487 F.2d at 157 (denial of petition for rehearing), or shall fix a reasonably prompt time for such hearing, provided that reinstatement shall be ordered in the event appellees fail to comply with the designated schedule, see Brookins v. *10 Bonnell, supra, 362 F.Supp. at 384 ; cf. Jones v. Snead, supra, 431 F.2d at 1117.
discussed Cited "see" Owen v. City of Independence (2×)
SCOTUS · 1980 · signal: see · confidence high
See Wellner v. Minnesota State Jr. College Bd., 487 F. 2d 153 (CA8 1973); Cooley v. Board of Educ. of Forrest City School Dist., 453 F. 2d 282 (CA8 1972).
discussed Cited "see" Blank v. Swan (2×) also: Cited "see, e.g."
N.D. Ill. · 1980 · signal: see · confidence high
See Wellner v. Minnesota State Junior College Board, 487 F.2d 153 (8th Cir. 1973).
discussed Cited "see" Jose R. Navato, M.D. v. Ivan W. Sletten, M.D.
8th Cir. · 1977 · signal: see · confidence high
See Wellner v. Minnesota State Junior College Board, 487 F.2d 153, 156 (8th Cir. 1973). *345 The appellees concede that the issue of Dr. Navato’s conducting private practice contrary to the provisions of his contract is disciplinary in nature.
cited Cited "see" Dolores Buhr v. Buffalo Public School District No. 38
8th Cir. · 1975 · signal: see · confidence high
See Wellner v. Minnesota State Junior College Board, 487 F.2d 153 (8th Cir. 1973); cf. Wisconsin v. Constantineau, 400 U.S. 433, 437 , 91 S.Ct. 507 , 27 L.Ed.2d 515 (1971).
cited Cited "see" Wagner v. Little Rock School District
E.D. Ark. · 1974 · signal: see · confidence high
See Wellner v. Minnesota State Junior College Board, 487 F.2d 153, 157 (8th Cir. 1973); United States v. Cotton Plant School District No. 1, 479 F.2d 671, 673-674 (8th Cir. 1973).
cited Cited "see, e.g." Shaw v. Gwatney
E.D. Ark. · 1985 · signal: compare · confidence low
Compare Wellner v. Minnesota State Junior College Board, 487 F.2d 153 (8th Cir.1973).
discussed Cited "see, e.g." Barber v. Inhabitants of Town of Fairfield
Me. · 1983 · signal: see also · confidence low
See Perry v. Sindermann, 408 U.S. 593, 603 , 92 S.Ct. 2694, 2700 , 33 L.Ed.2d 570, 580-81 (1972) (proof of property interest would not entitle one to reinstatement, only to hearing); see Zimmerer v. Spencer, 485 F.2d 176, 178-79 (5th Cir.1973) (school teacher denied due process not entitled to reinstatement); see also Wellner v. Minnesota State Junior College Board, 487 F.2d 153 , 156 n. 2 (8th Cir.1973) (school teacher denied due process entitled to salary but not to reappointment unless Board decided to reinstate).
cited Cited "see, e.g." George D. Owen v. The City of Independence, Missouri, Lyle W. Alberg, City Manager, Richard A. King, Mayor, Charles E. Cornell, Dr. Ray Williamson, Dr. Duane Holder, Ray A. Heady, Mitzi A. Overman, and E. Lee Comer, Jr., Members of the Council of the City of Independence, Missouri, George D. Owen v. The City of Independence, Missouri, Lyle W. Alberg, City Manager, Richard A. King, Mayor, Charles E. Cornell, Dr. Ray Williamson, Dr. Duane Holder, Ray A. Heady, Mitzi A. Overman, and E. Lee Comer, Jr., Members of the Council of the City of Independence, Missouri
8th Cir. · 1977 · signal: see, e.g. · confidence medium
See, e. g., Wellner v. Minnesota State Junior College Board, 487 F.2d 153, 156-57 (8th Cir. 1973); Cooley v. Board of Education of Forrest City School Dist., 453 F.2d 282 (8th Cir. 1972).
cited Cited "see, e.g." Owen v. City of Independence
8th Cir. · 1977 · signal: see, e.g. · confidence medium
See, e. g., Wellner v. Minnesota State Junior College Board, 487 F.2d 153, 156-57 (8th Cir. 1973); Cooley v. Board of Education of Forrest City School Dist., 453 F.2d 282 (8th Cir. 1972).
Retrieving the full opinion text from the archive…
Gary A. WELLNER, Appellee,
v.
MINNESOTA STATE JUNIOR COLLEGE BOARD, Appellant
73-1131.
Court of Appeals for the Eighth Circuit.
Dec 7, 1973.
487 F.2d 153
Theodore N. May, Sp. Asst. Atty. Gen., St. Paul, Minn., for appellant., Clinton J. Hall, St. Paul, Minn., for appellee.
Heaney, Per Curiam, Stephenson, Webster.
Cited by 66 opinions  |  Published
Reporter's Syllabus — editorial summary, not part of the Court's opinion

Theodore N. May, Sp. Asst. Atty. Gen., St. Paul, Minn., for appellant.

Clinton J. Hall, St. Paul, Minn., for appellee.

Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.

STEPHENSON, Circuit Judge.

Lead Opinion

STEPHENSON, Circuit Judge.

Minnesota State Junior College Board (the Board) appeals following an adverse final order in a 42 U.S.C. § 1983 action brought against the Board by Gary A. Wellner, a nontenured faculty member of Metropolitan State Junior College (Metro). Wellner alleged that he was deprived of procedural due process since the Board did not afford him a hearing prior to its decision not to reappoint him as a Metro faculty member. The trial court in an unreported opinion, held that certain “racist” charges made against Wellner, which were placed in his file, and the attendant stigma involved in the Board’s failure to reappoint him constituted “a deprivation of his interest in liberty,” within the meaning of Board of Regents of State Colleges et al. v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sinder-mann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); and that Wellner therefore was entitled to a prior hearing.[1]

The trial court determined at the time it rendered its order that “a hearing held now could not adequately reflect the actual circumstances surrounding the making of the racist charges against plaintiff and the decision not to reap[*155] point him for the 1971-1972 year.” It therefore assessed back pay against the Board; ordered the Board to appoint Wellner at the beginning of the next quarter or semester to a position of equal rank, responsibility and salary to that which he held at Metro during the 1970-1971 academic year, but at a Minnesota State Junior College other than Metro because of the “tensions and problems which would result from him working there;” and further ordered the Board to expunge from its records all matter relating to Wellner’s “actions or attitudes-toward black people which indicate that he holds a bias or prejudice against them.”

We affirm in part and reverse in part and remand this cause with directions.

In its opinion and order the trial court found: that Minnesota Stat.Ann. § 136.-62 (1967) authorizes Metro to appoint, reappoint and not reappoint nontenured faculty members without giving reasons or affording a hearing; that Dr. Robert W. Jensen, Metro’s president, appointed Wellner to the Metro faculty during the 1969-1970 academic year as a -physical education instructor and wrestling coach; that pursuant to the recommendation of the Faculty Review Committee (Committee), Dr. Jensen reappointed Wellner for the next academic year; that although Wellner applied for the position of permanent athletic director, Dean of Students, Dr. James P. Lund, appointed an outsider, Grover Garvin; that Well-ner was heavily burdened with extra work, which he was forced to assume in order to keep his job; that problems arose during the 1970-1971 academic year between Wellner and other faculty members, which triggered Dr. Lund to recommend to Dr. Jensen in writing that Wellner not be reappointed “because of ‘lack of cooperation and the ill feelings that have developed in the Athletic Department as a result of Mr. Wellner’s attitude and actions;’” that other anti-Wellner material was gathered by Dr. Lund and placed in Wellner’s file at Metro which charged Wellner with having a hatred toward blacks; that during the same period the Committee recommended to Dr. Jensen that Wellner be reappointed; that Dr. Lund in a memorandum to Dr. Jensen, recommended to the contrary; and that Dr. Jensen decided not to reappoint Wellner.

The trial court concluded that the accusations contained in the adverse mem-oranda were without foundation in fact, and that “[t]hey consist of conclusions and mental impressions which are readily explainable when one considers »that they were made at the direction of Dr. Lund” who was the superior of the authors of the memoranda. Insofar as the racist charges were concerned, the trial court found that there was no evidence of any kind to sustain or lend veracity to such charges. It determined that “[t]he evidence shows that the presence of the written racist charges in [Well-ner’s] file at Metro clearly reduces and diminishes his chances to obtain another teaching position since it is likely that his prospective employers will have access to such file.”

The principal question presented by this appeal is whether the record supports the trial court’s determination that Wellner had been deprived of an interest in liberty entitling him to a hearing pursuant to the dictates of Roth and Sinder-mann, supra.

In Harnett v. Ulett, 466 F.2d 113, 116 (8th Cir. 1972), we interpreted Roth as determining “that absent some sort of statutory tenure or contractual rights, a public employee has no interest cognizable at law necessitating due process protection unless a showing is made that the government conduct likely will . impose a stigma upon the employee that will foreclose future opportunities to practice his chosen profession.” Accord, Wilderman v. Nelson, 467 F.2d 1173, 1176 (8th Cir. 1972).

Both Roth and Sindermann subscribe to the view that although a person may have “no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may[*156] not rely.” Sindermann, supra, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). “ ‘[W]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.’ ” Roth, supra, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972).

This case was tried to the court sitting without a jury. The scope of our review is therefore limited to whether the findings made by the trial court are clearly erroneous. Fed.R.Civ. 52 (a); see Brown v. Scott, 454 F.2d 693, 694 (8th Cir. 1972). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); Arkansas Ed. Ass’n v. Bd. of Ed., Portland Ark. Sch. Dist., 446 F.2d 763, 770 (8th Cir. 1971).

The record discloses that subsequent to its decision to recommend reappointment, the Faculty Review Committee received written anti-Wellner memoranda from Dr. Lund, together with written charges of racism from the Black Student Union. Additional material adverse to Wellner had been collected by Dr. Lund from Gar-vin and Gardner, along with a letter addressed to Lund from the Black Student Union Basketball Team, which contained more racist charges. Dr. Lund placed the material into Wellner’s activity file which ultimately came into Dr. Jensen’s custody. Despite this new information, the Committee adhered to its original recommendation. Dr. Jensen nevertheless refused to follow the Committee’s suggested action and informed Wellner in writing that he would not be reappointed. Dr. Jensen testified that Well-ner’s requested review of the decision was denied and that the decision would stand without a hearing.

Our examination of this record convinces us that no mistake has been made. See, United States v. United States Gypsum Co., supra, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). There is ample evidence to support the trial court’s finding that the presence of racist charges against Wellner were the principal cause of his non-reappointment and this deprived ' Wellner of an interest in liberty which entitled him to a prior hearing, despite his nontenured status.

We turn then to the nature of the trial court’s remedy. We agree with that portion of its order which in effect states that Wellner is entitled to receive the salary he would have received had he been reappointed, unless and until he is lawfully discharged.[2] We also agree with that portion of the trial court’s order which directs the Board to expunge from its records all written matter which indicates that Wellner holds a bias or prejudice toward blacks.[3] However, the trial court erred when it determined not to order a hearing and instead ordered the board to reappoint Wellner to a similar teaching position. As we noted earlier, the trial court reasoned that “a hearing held now could not adequately reflect the actual circumstances surrounding the making of the racist charges.”

We acknowledge that this latter point is troublesome. Nevertheless, we are governed by Roth and Sindermann which dictate that upon the requisite showing of deprivation of an interest in liberty the appropriate remedy is a hearing ordered by the trial court. That is, in such a case due process requires that a party be given notice of the charges against him and a reasonable chance to be heard.[*157] The Supreme Court in Roth, supra, 408 U.S. at 573 n. 12, 92 S.Ct. at 2707 n. 12 observed:

“The purpose of such notice and hearing is to provide the person an opportunity to clear his name. Once a person has cleared his name at a hearing, his employer, of course, may remain free to deny him future employment for other reasons.”

We deem it inappropriate in this case to do more than follow the requirement. The trial court chose to go further and erred in so doing.

The final order of the trial court is therefore affirmed in part and reversed in part. We affirm that portion of the order requiring the Board to compensate Wellner for lost wages and to expunge from its records the material adverse to Wellner. We also affirm the assessment of costs against the Board, not including attorney’s fees. We reverse that portion of the order which directs Wellner to be reemployed. The cause is remanded to the trial court with directions to order an administrative hearing before the Board in accordance with due process requirements as noted in this opinion.

Affirmed in part; reversed in part and remanded with directions.

On Petition For Rehearing.

1

The trial court noted that both parties agreed that the case -would be controlled by the Roth and Sindermann decisions. We therefore do not reach the question of the retrospective operation of those holdings. See generally, Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971).

2

The Board, of course, may terminate its liability for salary without employment by reinstatement.

3

The Board has made it clear that such material is not the basis for its appeal and would therefore be irrelevant in any subsequent hearing except as required by Wellner in clearing his name. The trial court’s remedy is justified by the potential of such material for future damage and the Board’s lack of procedure for removing it from Wellner’s file.

Rehearing

PER CURIAM:

Petition for rehearing is denied.

Wellner was improperly discharged because he was not accorded an appropriate hearing. His termination was therefore a nullity and he remains on the payroll until a proper hearing is held, at which time he may be retained or not reappointed. It is not within our province to speculate that after a proper hearing clearing his reputation the Board will recommend that Wellner not be reappointed, or that the appropriate official will not reappoint him to a similar teaching position. In any event, Wellner remains on the payroll and is entitled to receive the wages he will have earned until his name is cleared by proper Board action and the decision is properly made with respect to whether he will be reappointed. However, any award shall be reduced by interim earnings he may have derived from other employment.