IN THE SUPREME COURT OF THE STATE OF MONTANA
No. 83-111
WILLIAM G. HARRIS,
Petitioner and Respondent,
GENEVIEVE BAUER,
Superintendent of Schools,
Yellowstone County, Montana,
sitting for Sonja Spanning,
et al.,
Respondents and Appellants.
NQV P'ci" 5983
ORDER Cl" ,j f!
ci t. . .r~r;dcm
PER CURIAM:
The opinion in this cause which was handed down November
14, 1983 is hereby amended. The following portion of the
opinion, which constitutes the last seven lines of the
original opinion, is hereby stricken:
"
"Here, the delay will exceed that in Yanzick
because the School Board must now make an initial
determination as to the propriety of the discharge
procedures used and a proper award to respondent.
"We remand to the District Court with instructions
to remand this cause to the County Superintendent
for further proceedings consistent with this
opinion. "
In place of the stricken language the following is
inserted:
"Here, the total time prior to a final determination
may exceed that in Yanzick.
"We remand to the District Court with instructions
in turn to remand to the County Superintendent for
a determination of the lawfulness of the discharge
procedures used by the Livingston County School
Board against Mr. Harris, as required under the
petition originally filed with the County
Superintendent."
DATED this day of November, 1983.
NO. 83-111
IN THE SUPREME COURT OF THE STATE OF MONTANA
1383
WILLIAM G. HARRIS,
Plaintiff and Respondent,
GENEVIEVE BAUER, Superintendent of Schools,
Yellowstone County, Montana, Sitting for
Sonja Spannering, et al.,
Respondents and Appellants.
Appeal from: District Court of the Sixth Judicial District,
In and for the County of Park
Honorable Nat Allen, presiding Judge
Counsel of Record:
For Appellants:
Karl Knuchel argued, Livinqston, Plontana
For Respondent:
Rerqer Law Firm, Billings, Montana
Arnold Berger argued, Billings, Montana
For Amicus Curiae:
Charles E. Erdmann argued, Helena Montana
Submitted September 20, 1 9 8 3
Decidedl November 1 4 , 1 9 8 3
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Genevieve Bauer, Yellowstone County Superintendent of
Schools sitting for the Park County Superintendent, issued an
order on December 15, 1981 finding that William Harris was
not entitled to tenure. Harris appealed to the State
Superintendent of Public Instruction, who affirmed the County
Superintendent's order. Harris then appealed to the District
Court of Park County, which overturned the prior
administrative determinations, found that Harris had tenure,
and ordered him reinstated with back pay. This appeal was
taken from the District Court's judgment. We affirm the
judgment in part and remand the cause for further
proceedings.
The principal issue on appeal is whether a teacher, who
was certified by the State of Montana, hired under a
teacher's contract and worked as a school psychologist,
obtained tenure.
Respondent Harris received a B.S. degree in 1962, was
certified to teach science, biology, chemistry, guidance and
counseling, and was employed as a teacher in Gardiner,
Montana from September, 1963 until May, 1972. Respondent
returned to coll-ege, majored in psychology, and received a
M.A. in Education in 1972. He applied for the position of
school psychologist in Livingston in January, 1973 and was
hired for the 1973-74 school year under an emergency
authorization. He worked for Livingston School Districts
Nos. 1 and 4 until 1981, when he was purportedly discharged.
Respondent's employment contracts were preprinted forms
with blanks for name, dates, salary and signatures. These
contracts were variously titled: "Teacher Contract,"
"Teacher's Contract" and "Individual Teacher's Contract."
Paragraph (1) of the 1973-74 and 1974-75 contracts provided:
"That said School District hereby agrees to employ
the said teacher to teach, or to render related
professional services, as and where assigned by the
Board of Trustees of the Livingston Public
Schools . . .."
Paragraph (1) of the contracts signed for the 1975-76 through
1980-81 school years provided:
"That said School District hereby agrees to employ
the said teacher to teach, within his areas of
certificate endorsement, or to render related
professional services, as and where assigned by the
Board of Trustees of the Livingston Public
Schools . . .."
The County filed annual reports with the State Office of
Public Instruction listing respondent's
"Assignment-Subject(s)" as Elementary Counselor (1973),
Special Education, Resource Room (1974), School Psychologist
(1975, 1977, 1979, 1980), and Special Education, School
Psychologist (1978) .
Between 1963 and 1980, respondent maintained teacher
certification. In January 1973, the Office of the State
Superintendent (now the Office of Public Instruction and
referred to as OPI) conditionally approved Harris' psycho-
logical testing credentials. In 1981 when professional
certification became available, OPI informed Harris by letter
that school psychologists who had practiced continually since
were eligible for initial certification without meeting
specific standards. Harris had served as school psychologist
since 1973.
From March, 1975 to August, 1981, respondent also worked
half-time as Director of Special Education for the Livingston
School Districts. He received school notices addressed to
"ALL TENURED Special Education Teachers." The Livingston
School District made contributions on respondent's behalf to
the Teacher's Retirement Fund from 1973 through 1980.
On March 20, 1981 Patrick Boyer, Director of Special
Services, filed a report for the 1980-81 school year
evaluating respondent's work as "less than adequate" and
stating Boyer was "reluctant to make a firm recommendation
for his retention as School Psychologist in the District."
By contrast, Boyer's reports from preceding school years were
highly complimentary. Mr. Boyer wrote respondent on April 8,
1981 that he was "relieved of all duties as a school
psychologist," but that he was required "to observe teacher's
hours" until his contract expired on June 5, 1981.
On April 14, the School Board voted to terminate
respondent's services as school psychologist. He was
notified of his dismissal by letter dated April 15, 1981. At
that time, respondent's contract term for the 1980-81 school
year had not yet expired.
Respondent appealed the Board's notice of dismissal to
the County Superintendent, then to the State Office of Public
Instruction. Based upon stipulated facts, both agencies
determined that respondent served as a specialist in an
ancillary, non-teaching, support staff capacity and was not
entitled to receive tenure. The District Court found that
respondent was a tenured teacher, discharged without
compliance to statutory procedures. The court ordered
respondent reinstated as a teacher, compensated for the
unexpired portion of his "automatically renewed teacher's
contract" for the 1981-82 school year, and paid to date on
the automatically renewed 1982-83 contract.
Section 20-1-101(20), MCA defines a teacher as:
". ..any person, except a district
superintendent, who holds a valid Montana teacher
certificate that has been issued by the
superintendent of public instruction under the
provisions of this title and the policies adopted
by the board of public education and who is
employed by a district as a member of its
instructional, supervisory, or administrative
staff. . .."
In 1979, the Legislature amended section 20-4-106, MCA
(formerly section 75-6006, R.C.M. 1947) to distinguish
specialists and teachers for purposes of certification. In
both the 1978 and 1979 codes, subsection 20-4-106(1), MCA
specifies five classes of teacher certificates. The 1979
amendment added the following language to section 20-4-106,
MCA :
"(2) The superintendent of public instruction shall
issue specialist certificates, and the board of
public education shall adopt specialist
certification policies. The specialist certificate
may be issued to an otherwise qualified applicant
who has the training, experience, and license
required under the standards of the board of public
education for the certifications of a profession
other than the teaching profession."
The Compiler's Comments state the legislative purpose of
distinguishing specialist and teacher certificates:
"The intent of this bill is to establish a
certification category for non-teaching school
personnel. It is not intended to restrict or
authorize the practice of any profession outside
the public school system.
"Specialist certificates may be developed in areas
such as school psychology or school nursing."
Section 20-4-106, MCA, Annot. Compiler's Comments.
In 1979, the Legislature also made a distinction between
teachers and specialists for purposes of tenure, as well as
for certification. Section 20-4-203, MCA (1978) (formerly
section 75-6103, R.C.M. 1947) exempted only district
superintendents from the protection of tenure. The current
tenure statute as enacted in 1979 provides:
"Whenever a teacher has been elected by the offer
and acceptance of a contract for the fourth
consecutive year of employment by a district in a
position requiring teacher certification except as
- district
a superintendent or specialist, the
teacher shall be deemed to bereelected from year
to year thereafter as a tenure teacher at the same
salary and in the same or a comparable position of
employment as that provided by the last executed
contract with such teacher . . ." Section
20-4-203, MCA (emphasis added) .
Six of respondent's employment contracts predate these
1979 statutory changes distinguishing specialists and
exempting specialists from teacher tenure. No such
distinctions existed in 1973, when respondent began working
for Livingston School Districts Nos. 1 and 4.
As a general rule of statutory construction,
"retroactive effect is not to be given to a statute unless
commanded by its context, terms or manifest purpose."
Falligan v. School Dist. No. 1 (1917), 54 Mont. 177, 179, 169
P. 803, 804. The 1979-80 and 1980-81 contracts must be read
in conjunction with section 20-4-203, MCA, set forth directly
above. However, former law applies to Harris' contracts for
school years 1973-74 through 1978-79.
At the time that respondent executed an employment
contract for the 1976-77 school year, the tenure statute
required three factors to be met before tenure could be
granted: (1) that the employee be "a teacher;" (2) that a
contract "for the fourth consecutive year of employment by a
district" be executed; and (3) that the teacher be serving
"in a position requiring teacher certification." Section
20-4-203, MCA.
Section 20-1-101 (20), MCA defines "teacher" as a person
"who holds a valid Montana teacher certificate" and "who is
employed by a district as a member of its instructional,
supervisory, or administrative staff . . .." This definition
has not changed since enactment in 1971. Harris held valid
Montana teacher certificates and was employed by the
Livingston School Districts as a member of the administrative
staff. Respondent was a teacher. The first element of the
tenure test is satisfied.
Harris' fourth consecutive employment contract with the
Districts was for the 1976-77 school year. Thus, the second
element of the tenure test is likewise satisfied.
The third and final element of the test is whether
Harris served " in a position requiring teacher
certification." During each of the four consecutive school
years between 1973-74 and 1976-77, Harris' contracts required
him to maintain teacher certification. The 1977-78 contract
additionally required him to register a copy of the
certificate with the Park County Superintendent of Schools.
Although neither the OPI or the County Superintendent
required school psychologists to file teacher certificates,
Harris was by contract specifically required to do so. He
satisfied this contractual obligation by maintaining and
filing valid teacher certificates for each school year he
was employed. As defined by his contracts, Harris' position
required teacher certification.
The fact that the Livingston School Districts continued
to execute "Individual Teacher's Contracts" that required
respondent to hold a valid teacher certificate, rather than a
specialist certificate in 1980 and 1981, is additional
evidence that Harris was actually a teacher assigned by the
Board to render related professional services. We conclude,
as did the District Court, that the contracts of the parties
are clear and unambiguous, and the contact language expresses
the intention of the parties.
In Sorlie v. School Dist. No. 2 (Mont. 1983), 667 P.2d
400, 40 St.Rep. 1070, a classroom teacher with 20 years
experience accepted an administrative position as Coordinator
of Intermediate Education in 1978 and was discharged in 1980.
This Court noted that " [tlhere is no separate tenure for
administrative personnel." 667 P.2d at 403, 40 St.Rep. at
1073. We concluded that:
" . . . tenure acquired as a teacher applies to a
subsequent administrative position. Section
20-1-101(20), MCA, clearly provides that a teacher
and administrator are comparable positions - -
for the
urpose of acquiring tenure. If this were not so,
$n educator could lose tenure rights by accepting a
promotion to an administrative position." 667 P.2d
at 403, 40 St.Rep. at 1073-74 (emphasis added).
Both Mrs. Sorlie and Mr. Harris became certifiable as
specialists in 1979; however, both earned tenure prior to the
1979 change in the law.
In Sibert v. Community College of Flathead Ctv. (1978),
179 Mont. 188, 587 P.2d 26, we held that an employee who did
not hold a position requiring teacher certification was not
authorized to receive tenure. Neither Sibert nor Harris were
required to perform any classroom teaching duties. As
Manager of Services, however, Sibert was not required to
maintain valid teacher certification and, therefore, was not
authorized to receive teacher tenure. Sibert, 179 Mont. at
191-92, 587 P.2d at 28. Harris, on the other hand, was
required by contract to maintain teacher certification.
Amicus Curiae, Montana School Boards Association, Inc.,
cites Mish v. Tempe School Dist. No. 3 (Ariz. App. 1980), 125
Ariz. 258, 609 P.2d 73, a case with facts strikingly similar
to this case. In Arizona as in Montana, tenure is achieved
with the fourth consecutive contract. Mish was a certified
teacher, hired under a probationary teacher's contract in
1972 and assigned to work as a computer programmer for the
District. The School District "used the probationary
teacher's contract in hiring several non-teaching (although
certified) employees" so that they would qualify for higher
salaries and more lenient work schedules, and also as "a
matter of convenience" to the School District. Mish, 609
P.2d at 75. Like Harris, Mish was required to maintain a
valid teacher certificate as a condition of employment. She
attended "teacher only1'conferences and tested children. Mish
contended that the District hired her as a teacher, but
assigned her to render the related duties of computer
programming and research.
The Arizona Appellate Court held that Mish failed to
satisfy Arizona's 4-prong test for tenure, the third element
of which provides:
"3. The person must be one of the following:
(a) Employed and working as a full-time
classroom teacher; or
(b) A school principal devoting not less
than fifty percent of his time to classroom
teaching; or
(c) A supervisor of children's activities."
Flish, 609 P.2d at 77.
The Court held that Mish did not fulfill this part of
Arizona's test.
No such element is contained in Montana's tenure
statute. Montana's 3-prong test (section 20-4-203, MCA) is
distinguishable from Arizona's 4-prong test (A.R.S. 515-251).
A "continuing teacher" in Arizona comparable "tenure
teacher" in Montana. The Arizona Teachers Tenure Act, A.R.S.
S15-251(A)(2), specifically defines a continuing teacher as a
certified teacher whose contract has been renewed for the
fourth consecutive year of employment as a full-time
classroom teacher, a school principal devoting not less than
fifty per cent of his time to classroom teaching, or a
supervisor of children's activities. Montana's teacher
tenure law, section 20-4-203, MCA, contains no such
qualification or prerequisite, nor does section 20-1-101(20),
MCA, which defines "teacher." Although the facts in Mish and
Harris are similar, the differences between Arizona and
Montana law render Mish valueless as precedent here.
The fact that the Livingston School Districts
contributed on respondent's behalf to the Teachers1
Retirement System has little, if any, probative value.
Members of that system include persons other than teachers.
Section 19-4-302, MCA.
We hold that respondent was employed for the fourth
consecutive year in 1976-77, served as school psychologist,
and was required by contract to maintain teacher
certification in order to serve in that position. Based on
the specific language contained in respondent's employment
contracts, the manner in which the parties dealt with each
other over the course of nine years, and the fact that the
School Board continued to employ respondent as a teacher
after the Board became empowered on July 1, 1979 to employ a
specialist, we hold that William Harris was a teacher and
that he received teacher tenure in 1976.
By exempting specialists from teacher tenure in 1979,
the Legislature restricted the class of persons protected by
tenure under section 20-4-203, MCA. In doing so, however, it
did not affect tenure earned before 1979.
Regarding the issues of dismissal procedures and
damages, we note that this case was submitted to the County
and State Superintendents and to the District Court on the
parties' Stipulation of Facts and attached exhibits. Harris'
Notice of Appeal to the County Superintendent and his
Petition for Review by the District Court requested
reinstatement with back pay. Neither the County
Superintendent nor the OPI addressed the issues of dismissal
procedures and damages. The District Court, having found
that Harris was a tenured teacher, determined that section
20-4-204, MCA applied. The Court reinstated respondent with
back pay because the Board had failed to follow the statutory
procedures for termination of a tenured teacher. The
District Court's order exceeds the scope of the State
Superintendent's judgment.
Yanzick v. School Dist. No. 23 (Mont. 1982), 641 P.2d
431, 436-39, 39 St.Rep. 191, 196-201, sets forth the
standards of review to be applied by the County
Superintendent, the State Superintendent of Public
Instruction, the District Court and this Court. Section
20-4-204, MCA authorizes the County Superintendent to review
the Board of Trustees' decision to terminate a teacher's
employment. The County Superintendent acts as fact-finder
in a trial de novo, as well as furnishing appellate review of
the Board's decision. Sections 20-3-210(2) and 2-4-612, MCA.
"The statutes do not contain a limitation on the
decision-making power of the County Superintendent."
Yanzick, 641 P.2d at 438, 39 St.Rep. at 198.
Section 20-3-107, MCA sets forth the essential elements
for appeal of the County Superintendent's determination to
the State Superintendent of Public Instruction. This section
requires the State Superintendent to make a determination
based on the record. Section 2-4-623, MCA requires that
findings of fact and conclusions of law be stated separately.
This section applies to the State, as well as to the County
Superintendent. Yanzick, 641 P.2d at 438, 39 St.Rep. at 199.
We note that the State Superintendent's decision in this
matter does not comply with this statutory requirement.
The District Court likewise is subject to the provisions
of the Montana Administrative Procedure Act in its judicial
review of contested cases. The standard of review by the
District Court is set forth in section 2-4-704, MCA:
"(1) The review shall be conducted by the court
without a jury and shall be confined to the record.
.
. . The court, upon request, shall hear oral
argument and receive written briefs.
" (2) The court may not substitute its judgment for
that of the agency as to the weight of the evidence
on questions of fact. The court may affirm the
decision of the agency or remand the case for
further proceedings. The court may reverse or
modify the decision if substantial rights of the
appellant have been prejudiced because the
administrative findings, inferences, conclusions,
or decisions are:
"(a) in violation of constitutional or statutory
provisions;
"(b) in excess of the statutory authority of the
agency;
"(c) made upon unlawful procedure;
"(d) affected by other error of law;
"(e) clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record;
"(f) arbitrary or capricious or characterized by
abuse of discretion or clearly unwarranted exercise
of discretion; or
" (g) because findings of fact, upon issues
essential to the decision, were not made although
requested."
The District Court, in effect, sits as a lower appellate
tribunal, basing its conclusions on a review of the printed
record. Yanzick, 641 P.2d at 438-39, 39 St.Rep. at 200. The
court can review only those issues determined by the State
Superintendent, which in turn reviews only those issues
determined by the County Superintendent.
The County Superintendent concluded that Harris "was not
a teacher," but did not address the issues of termination
procedures or damages. The State Superintendent affirmed the
County Superintendent's decision. The District Court's
findings and conclusions are supported by the record, but go
beyond those of the superintendents. The District Court
should properly have reversed the superintendents on the
issue of teacher tenure and remanded the cause for
negotiation between Mr. Harris and the School District and,
if unsuccessful, for determination of the remaining issues by
the County Superintendent.
We note that 2 4 years have passed since Mr. ~ a r r i sfirst
challenged the Board of Trustees1 decision to terminate his
employment. Although Mr. Harris did not receive a hearing
before the Board, as Mr. Yanzick did, we believe the
suggestion made to the legislature in Yanzick applies here as
well.
"We suggest that the initial hearings followed by
three separate and in part duplicating appeals does
not appear to be judicial economy or an appropriate
manner of disposing of a contested case under MAPA
without delay. We suggest this is an appropriate
area for legislative consideration.l1 641 P. 2d at
439, 39 St.Rep. at 201.
Here, the delay will exceed that in Yanzick because the
School Board must now make an initial determination as to the
propriety of the discharge procedures used and a proper award
to respondent.
We remand to the District Court with instructions to
remand this cause to the County Superintendent for further
proceedings consistent with this opinion.
We concur:
Chief ~usticY/
-