IN THE SUPREME COURT OF THE STATE OF MONTANA
IRENE D. SORLIE,
Petitioner and Appellant ,
CLERK OF S'JPREME COURT
VS . STATE OF PALnUFdTAi4A
SCHOOL DISTRICT NO. 2 ,
Respondent and Cross-Appellant.
Appeal from: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone
Honorable Diane Barz. Judae presidina.
Counsel of Record:
For Appellant:
Moses Law Firm, Billin~s, Montana
Charles F. Moses aruued, Billinqs, Plontana
For Respondent:
Holmstrom & Dunaway, Billings, Montana
Robert Holmstrom argued Billings, Montana
For Cross-Appellant:
John Larson argued, Helena, Elontana
Submitted: April 2 6 , 1 9 8 3
Decided July 7 , 1 9 8 3
Filed.:
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Irene Sorlie appeals the Yellowstone County Distrlet
Court decision affirming the ruling of the State Superinten-
dent of Public Instruction that School District # 2 of Yel-
lowstone County did not violate tenure laws by reassigning
her from an administrative positlon to classroom teacher.
The School District, respondent, cross-appeals. We affirm.
Sorlie was employed by the School District in 1951.
She taught untii 1978 when she accepted an administrator's
contract to be Coordinator of Intermediate Education. Her
administrative duties included curriculum development and
working with teachers of grades 4 through 6 experiencing
teaching difficulties. The record indicates that Sorlie had
an exemplary record as a teacher and consequently earned the
position as Coordinator of Intermediate Education. She was
able to use her many years of service to assist other
teachers having certain teaching difficulties and estab-
lished an excellent record as an administrator.
On lalarch 31, 1980, the School District sent Sorlie a
reemployment contract which notified her that employment as
an administrator for 1980-81 was contingent upon "adequate
allocation of state and federal funding and voter approval
oi the initial mill levy amount." Sorlie signed the contract
and returned it to the School District. The levy failed.
The Board of Trustees determined that it would adopt a
new budget that would not need an increased mill levy. The
development of this budget would require the District Super-
intendent to recommend program and staff reductions for
1980-81. Among the proposed cuts was the position held by
Sorlie. The Board adopted this recommendation along with
others. On June lb, 1980, the reduced mill levy was approved
by the voters.
On June 27, 1 9 8 0 , Sorlie was informed that she would
be assigned as a fourth grade teacher. At her request, she
was reassigned to teach the second grade at Poly Drive
School.
Sorlie requested a hearing before the School Board
which was held on September 16, 1980. She alleged that
reassigning her to a classroom was a demotion as Lo salary
and responsibility and, hence, contrary to Montana tenure
laws. The Board affirmed its decision, and Sorlie brought
the matter to the County Superintendent of Schools.
The County Superintendent found Sorlie's adminis-
trative position was not comparable to her teacher's
position; that she did not acquire tenure in such adminis-
trative position; that the contingency funds available to
the School District did not prove that such funds should be
used to pay the salary to Sorlie for her administrative
position; and that the School District was correct in
denying her claim to reinstatement to her admininistrative
position.
Sorlie then appealed the decision of the County Super-
intendent to the State Superintendent of Public Instruction.
,The State Superintendent's order was handed down on
September 28, 1981. It concluded as follows:
"Clearly from the facts presented to the
County Super intendent, Mrs. Sorlie did
acquire tenure as a teacher. In fact,
both parties do not disagree with this
legal conclusion. Further, in view of
this state's statute, I hold as a matter
of law that the position of elementary
teacher is comparable to the position of
coordinator of intermediate education for
purposes of tenure. [Emphasis added. I
"Clearly, under the facts presented to
the County Super intendent, Mrs. Sorlie
did acquire tenure as a teacher for her
service of almost 20 continuous years to
Yellowstone County Elementary Districts."
The State Superintendent, even though concluding reas-
slgnrnent did not violate tenure laws, held that reduction in
salary was such a violation. Consequently, appellant was
reelected at the same salary provided by her 1979-80
administrator's contract. No mention was made of any
subsequent years.
Sorlie then appealed to the District Court for judi-
cial review. That court affirmed the State Superintendent's
declsion on the basis that there is ample authority for the
School District to transfer tenured personnel to other posi-
tlons for which they are certified and qualified.
From the District Court decision, Sorlie appeals. The
School Distrlct cross-appeals.
Sorlie raises two issues for our consideration:
1. Does the School District have any right to cross-
appeal to this Court the salary decision made by the State
Superintendent?
2. Was Sorlie's reassignment from administrator to
classroom teacher violative of Montana's tenure laws?
The School District presents two issues:
1. Is Sorlie entitled to the higher administrative
salary, plus increases, for school years subsequent to
i380-81?
2. Dld the Distrlct Court commit error by allowing
the State Superintendent to intervene in the lower court
dc t ion?
Sorlie first contends tnat the School District should
not be allowed to appeal the s a l a r y d e c l s i o n made by the
State Superintendent because it did not directly petition
the District Court for review. Thus, the issue is not
properly before t h i s Court. S e c t i o n 2-4-702, PICA, provides
t h a t a p a r t y a g g r i e v e d from an agency r u l i n g must file a
p e t i t i o n i n t h e D i s t r i c t C o u r t demanding r e l i e f . Here, the
School District did not petition for judicial review nor
cross-petition from S o r l i e ' s p e t i t i o n .
W e h o l d t h a t t h i s i s s u e is a p p e a l a b l e a s t h e q u e s t i o n
of r e v i e w a b i l i t y was p r e v i o u s l y d e c i d e d by t h i s C o u r t . On
November 26, 1982, w e dismissed S o r l i e ' s motion t o d i s m i s s
the School D i s t r i c t ' s cross-appeal which i n c l u d e d t h e s a l a r y
issue.
Further, section 2 - 4 - 7 0 2 ( 1 ) ( b ) , MCA, indicates that
issues brought be£ o r e the agency proceeding automatically
become s u b j e c t t o j u d i c i a l r e v i e w . The s a l a r y q u e s t i o n was
raised at the agency level and reviewed by the District
Court. From such decision, the School District, as an
aggrieved p a r t y can appeal.
In another context, Sorlie's petition for judicial
review raised the s a l a r y q u e s t i o n and t h e S c h o o l D i s t r i c t
was aggrieved by the District Court decision on such
question. Consequently, t h e School D i s t r i c t can a p p e a l on
that basis. Rule 1, M.R.App.Civ.P.
Sorlie next asserts that reassignment from adminis-
t r a t o r t o c l a s s r o o m t e a c h e r was v i o l a t i v e o f Montana t e n u r e
laws. She a r g u e s t h a t her undisputed tenure as a teacher
carried forward i n t o her administrative position and that
the School D i s t r i c t v i o l a t e d her t e n u r e r i g h t s by d e m o t i n g
h e r from C o o r d i n a t o r of Intermediate Education t o classroom
teacher.
Sorlie also argues that the burden of proof is on the
School District to justify its action; that the financial
reasons asserted by the District were not adequate justifi-
cation; and that there were sufficient funds to reemploy
Sorlie as an administrator.
We hold that Sorliels tenure rights were not violated.
The basic tenure statute provides in part:
"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
a district superintendent or specialist,
the teacher shall be deemed to be re-
elected 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.
. ."
There is no separate tenure for administrative personnel.
Further, 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 instruc-
tion 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 instruction-
al, supervisory, or adminstrative staff
... 11
We conclude that tenure acquired as a teacher applies
to a subsequent administrative position. Section 20-1-
lOl(2U) MCA, clearly provides that a teacher and administra-
tor are comparable positions for the purpose of acquiring
tenure. If this were not so, an educator could lose tenure
rights by accepting a promotion to an administrative
position.
Sorlie contends that her tenure rights require the
School District to reemploy her in the same capacity at the
same salary. While the two positions involved here are
comparable for purposes of acquiring tenure they are func-
tionally dissimilar. However, we conclude that reassignment,
without reduction in salary, for legitimate financial
constraints, is justifiable and not contrary to tenure laws.
In BrownsviPle Area School District v. Lucostic (Pa. 1972),
297 A.2d 516, two former administrators sued the school
board for demotion in position and salary, alleging tenure
violations. The Commonwealth Court of Pennsylvania held
that the action of the school board was proper and, through
dicta, approved of demotion pursuant to legitimate program
and administrative reorganization. See also, 78 C.J.S.,
Schools and School Districts, S 205 at 1101; Nagy v. Belle
Vernon Area School Dist. (1980), 49 Pa.C. 452, 412 A.2d 172;
Black v. Bd. of School Directors (1979), 43 Pa.C. 200, 401
A.2d 1251; McCartin v. School Committee of Lowell et al.
(1948), 322 Mass. 624, 79 N.E.2d 192.
Local economies are constantly changing; therefore, a
school board must have the requisite authority to manage the
school district in a financially-responsible manner. This
includes eliminating certain programs and activities, and
thereby terminating or reassigning personnel.
A school board's powers and duties are outlined in
sectlon 20-3-324, MCA. This section reads in part:
"As prescribed elsewhere in this title,
the trustees of each district shall have
the power and it shall be their duty to
perform the following duties or acts:
"(1) employ or dismiss a teacher, princi-
pal, or other assistant upon the recom-
mendation of the district superintendent,
the county high school principal, or
other principal as the board may deem
necessary, accepting or rejecting such
recommendation as the trustees shall in
their sole discretion determine, in ac-
cordance with the provisions of Title 20,
chapter 4;
"(2) employ and dismiss administrative
personnel, clerks, secretaries, teacher
aides, custodians, maintenance personnel,
school bus drivers, food service person-
nel, nurses, and any other personnel
deemed necessary to carry out the various
services of the district;
"(8) adopt and administer the annual bud-
get or an emergency budget of the dis-
trict in accordance with the provisions
of the school budget system part of this
title;
"(9) conduct the fiscal business of the
district in accordance with the provi-
sions of the school financial administra-
tion part of this title;"
Section 39-31-303, MCA, outlines the management rights
of public employers. It reads in part:
"Public employees and their representa-
tives shall recognize the prerogatives of
public employers to operate and manage
their affairs in such areas as, but not
limited to:
"(1) direct employees;
"(2) hire, promote, transfer, assign, and
retain employees;
"(3) relieve employees from duties
because of lack of work or funds or under
conditions where continuation of such
work be inefficient and nonproductive;
"(4) maintain the efficiency of govern-
ment operations;"
In the present case, it can be concluded that appel-
lant was removed from her administrative position pursuant
to the Board's power to financially manage the School Dis-
trict. Further, reassignment was in accordance with section
39-31-303(2) and (3), MCA, cited above.
On t h e o t h e r h a n d , i n Keiser v. S t a t e Bd. of R e g e n t s
of H i g h e r E d u c a t i o n (1981), Mont. , 6 3 0 P.2d 194,
38 S t . R e p . 674, we held t h a t a s t a t e u n i v e r s i t y could not
reduce a department director's salary when, pursuant to
administrative reorganization, t h e d i r e c t o r was d e m o t e d t o
professor. Our d e c i s i o n was b a s e d upon t h e f a c t t h a t t h e
d i r e c t o r was t e n u r e d u n d e r t h e u n i v e r s i t y s y s t e m a n d a c h i e f
g o a l of t e n u r e is e c o n o m i c s e c u r i t y . If t e n u r e is a c h i e v e d
b u t s a l a r i e s c a n b e r e d u c e d , t h i s g o a l means n o t h i n g . While
tenure r i g h t s of primary educators and c o l l e g e p r o f e s s o r s
stem f r o m s e p a r a t e s o u r c e s , t h e i r g o a l s a r e i d e n t i c a l . T h u s ,
r e c o g n i z i n g t h e o b j e c t i v e of e c o n o m i c s e c u r i t y , w e c o n c l u d e
t h a t S o r l i e should maintain her a d m i n i s t r a t o r ' s salary.
We also hold that if a position similar to that
previously held by the reassigned educator is available
a f t e r p r o g r a m r e d u c t i o n s o r c h a n g e s i t m u s t be o f f e r e d t o
t h a t person.
On cross-appeal the School District contends that
S o r l i e is o n l y e n t i t l e d t o t h e h i g h e r a d m i n i s t r a t i v e s a l a r y
f o r t h e 1980-81 s c h o o l y e a r a s t h e s c o p e o f a l l p r o c e e d i n g s
covered t h a t year only.
We conclude that the higher administrative salary,
plus increases, should be paid for all subsequent years
Sorlie teaches. The tenure statute requires a tenured
teacher t o maintain t h e same s a l a r y y e a r after year. We
have h e l d t h a t S o r l i e ' s t e n u r e a s a t e a c h e r c a r r i e d forward
i n t o her a d m i n i s t r a t i v e p o s i t i o n . Consequently, s h e was a
t e n u r e d a d m i n i s t r a t o r and was e n t i t l e d t o t h e a d m n i s t r a t i v e
salary, plus increases, for all years she continues to
teach. See, K e i s e r , s u p r a .
The second issue raised by the School District is
w i t h o u t m e r i t and w e do n o t d i s c u s s i t h e r e . The c o u r t was
c l e a r l y c o r r e c t i n allowing the intervention.
A£ firmed.
\
Chief J u s t i c e
W concur:
e
1
Justices
Mr. Justice John C. Sheehy concurring in part and dissenting
in part:
I concur with the majority insofar as it holds that (1)
Irene Sorlie was entitled to tenure for her position of
coordinator of intermediate education in School District No.
2, Yellowstone County; (2) that she is entitled to the same
salary which she was getting in the last year of her
administrative position plus any increments subsequently
adhering; (3) that we may consider the school board's
cross-appeal here, but find no merit in the same; (4) that
Irene D. Sorlie did not waive any rights to tenure by signing
the contract which was presented to her and which contained
self-exculpatory provisions in favor of the school board.
I dissent from the majority, and would hold that Irene
D. Sorlie is entitled to a position comparable to that of a
coordinator of intermediate education because of her tenured
rights; that the school board may not utilize potential
financial problems to take away her tenured rights; that the
Superintendent of Public Instruction is in error when he
claims that a teaching position in the second grade of an
elementary school, and the position of coordinator of
intermediate education curricula are the same; that she is
entitled to such increments as would have accrued to her
position from and since her termination by the school board
of her administrative position.
I will speak to the most important issue first. She was
tenured in her position as a coordinator of intermediate
education curricula, and thus is entitled now and has been
since her termination from that position entitled to a
comparable position under her tenure rights. A teaching
position in the second grade is not comparable to the
position of coordinator of intermediate education.
Under the facts in this case, in her administrative
position she worked with other elementary grade teachers for
the purpose of coordinating, using her 20 years teaching
experience, the teaching methods and curricula for those
grades. In effect she had a supervisory position as regards
curricula. Upon being assigned to a teaching position in the
second grade in an elementary school, she has been deprived
of all such administrative function, has no further say a.bout
the curricula adopted in the system, and must accept the
curricula already set in place for her guidance as a teacher.
Thus she has not been given a comparable position. She has
been demoted. She was once an administrator, she is now a
teacher.
This case is controlled by the holding in Smith v.
School District No. 18 (1943), 115 Mont. 102, 115, 139 P. 2d
518. In that case, this Court said:
"The purpose of enacting the Teacher Tenure Act
(citing the statute) is not merely to insure
teaching employment but it is also to insure the
teachers who have held teaching positions for three
or more consecutive years, security in the
position, the grade or the status which they have
thus attained.
"In the instant case the position which appellant
had held teaching the upper grades in the Valier
Public School had been given to someone else. The
new position offered appellant was a demotion. It
would remove appellant from the town of Valier and
place him 10 miles out in the country. It would
remove him from his old position as band
instructor. It would remove him from his old
position, rank, grade and status of a teacher of
the upper grades in a town school and would reduce
him to the status of a teacher in an ungraded
country school teaching all grades from the primary
up. To thus demote a teacher requires the same
procedure as removal or dismissal (citing a case).
"While a regularly employed teacher may be
discharged for a good and sufficient cause yet 'the
board has no power to . .
. transfer a teacher from
a higher to a lower grade. Assigning a teacher to
a lower grade is a "removal" and just as much so as
a dismissal would be.' (Citing authority.)"
From the foregoing, therefore, it is clear that the
holding of the majority in this case respecting tenure rights
in an administrative position is two-faced: while purporting
to recognize that a tenured teacher promoted to an
administrative position in the school system is tenured in
the administrative position, the majority takes away the
tenure right in the guise of holding that the school board
for financial reasons may demote the tenured person to a
lower position. Such a holding gives only token recognition
to the principles of tenure.
The applicable statute is section 2 0 - 4 - 2 0 3 , MCA, which
provides in pertinent part:
"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 teachers certification ...
the
teacher shall be deemed to be reelected from year
to year thereafter as a tenure teacher at the same
salary - - - - - - same or a comparable position of
and in the
as that provided 9 - - executed
employment - - the last
contract - - teacher.
with such . ."
(emphasis added)
Under the statute, tenure has two guaranteed concepts, one
salary, and two, status or a comparable position. If a
school board may demean a teacher by offering a lesser
position, even though the same salary adhered, then tenure is
effectively sabotaged.
I must say for the credit of the school board here that
it recognizes that it did not offer a comparable position to
Irene D. Sorlie. Throughout these proceedings, and before
this Court, it has insisted that it had the right to offer a
less than comparable position because in the view of the
school board she was not tenured in her administrative
position under section 20-4-202. That at least is an honest
approach.
&I. (L
*C
I/L"-
ohn C. Sheehy