(dissenting).
Because relator was not placed on leave according to law, I respectfully dissent. School districts should anticipate that unrequested leave will predictably be upset in circumstances like these.
The ingredients of relator’s plea are simple and compelling:
1. Leave placements of continuing contract teachers must be in the reverse order of seniority, provided that retained teachers are qualified for their assignments. Minn.Stat. § 125.12, subd. 6b (1990). Relator is a continuing contract teacher employed by respondent in 1978.
2. As part of the statutory mandate to retain a senior teacher, the school district is obligated to employ “practical and reasonable” realignment of staff. Strand v. Special School Dist. No. 1, 392 N.W.2d 881, 886 (Minn.1986). Here it is undisputed that an industrial arts colleague of relator also is qualified for physical education instruction now given by a staff that includes a recently employed probationary teacher.
3. The school district does not know (and we cannot know) whether a realignment of the kind relator suggests is practical or reasonable. The district has never denied nor refuted the hearing officer’s conclusions, following a March 1990 hearing, that implementation of the proposed realignment appears “very possible” but that the record includes too little evidence to establish whether or not the realignment is practical and reasonable. Moreover, the hearing examiner concluded that the district had numerous other cost cutting options in the event the alternative leave proposal did not save exactly as much as a leave for relator.
4. Following the March hearing, the district recorded a finding that the proposed realignment was not practical or reasonable. However, this finding was in spite of the district’s position, clearly declared in its appellate brief, that “no new evidence” was received after the examiner’s hearing. Given the unchallenged conclusions of the examiner, there is no support for the later findings of the district.
5. Adding yet another basis for reinstatement of relator, he was denied a fundamental right to participate in a May 1990 proceeding of the district board where its realignment decision was concluded. See Minn.Stat. § 125.12, subds. 3, 4, and 6b(j) (1990) (notice and hearing rights preceding leave decisions). Recognition of this error is further compelled by the hearing examiner’s singular recommendation that the realignment proposal be reconsidered. Concluding that a supplementary hearing was not feasible, evidently because of its self-imposed problems in timely concluding a lawful leave proceeding, the district finalized its leave action in a hearing where relator was not permitted to participate and was given no notice to accommodate participation of counsel and the submission of evidence and argument. Finally, further enlarging the process error here, deficiencies of the record on the realignment issue make it impossible for the board to issue findings “based upon competent evidence,” the documentation required by Minn.Stat. § 125.12, subd. 10 (1990).
Because of our decision here, relator understandably might be cynical regarding benefits promised by public law and the judicial process. He has lost tenured public employment without demonstrated cause or lawful process.
I respectfully dissent.