No. 89-430
IN THE SUPREME COURT OF THE STATE OF MONTANA
RAYMOND HARRIS,
Petitioner and Appellant,
-vs-
TRUSTEES, CASCADE COUNTY SCHOOLS DISTRICTS
NO. 6 and F,
Respondents and Cross-Appellants,
and
NANCY KEENAN, Superintendent of Public Instruction,
Respondent.
APPEAL FROM: District Court of the First Judicial,District,
In and for the County of Lewis & Clark,
The Honorable Henry Loble, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Emilie Loring; Hilley & Loring, Missoula, Montana
For Respondent:
Charles Erdmann; Erdmann & Wright, Helena, Montana
Beda J. Lovitt, Office of Public Instruction, Helena,
Montana
Submitted on Briefs: Dec. 28, 1989
Decided: February 8, 1990
Filed 2
Justice R. C. McDonough delivered the Opinion of the Court.
Appellant Raymond Harris appeals the order of the Mon-
tana First Judicial District Court, Lewis & Clark County,
affirming the Cascade County Superintendent of School's, the
State Superintendent of Public Instruction's and the Roard of
Trustees of Cascade County School District No. 6 & F's (the
Board) decision to dismiss Harris, a tenured teacher, due to
a reduction in force. Harris (the Teacher) claims that the
Board failed to follow the required statutory procedure when
they terminated him. Respondent Board appeals the same order
affirming the decision requiring the school district to
reinstate the Teacher in the half-time teaching position that
replaced his former full-time position. We affirm the
decision of the District Court but on narrow grounds particu-
lar to this case.
The Teacher raises the following issue on appeal: Did
the District Court err in holding that the Teacher was prop-
erly terminated under the provisions of $ 20-4-204, MCA?
On cross-appeal, the Board raises the issue: Did the
District Court err in affirming the County and State
Ssuperintendents' determination that the school district must
offer the Teacher the newly created half-time teaching posi-
tion that replaced his former full-time position?
The Teacher was a full-time tenured physical education
instructor at the Simms High School. On March 11, 1987, at
its regular meeting, District Superintendent Fay Lesmeister
made a written recommendation to the Board suggesting that
the full-time P.E. position be eliminated for the followjng
school year. According to the minutes of the meeting, a
member of the Board moved to accept the recommendation and
the motion passed unanimously. Mr. Lesmeister then adminis-
tratively recommended that the Teacher not be re-hired due to
the elimination of the full-time P. E. position. Again, a
Board member moved to accept the administrative recomrnenda-
tion that the Teacher be notified of non-renewal of his
contract due to the elimination of the position and the
motion passed unanimously.
The Board sent a letter to the Teacher stating that they
had received a recommendation for non-renewal of the Teach-
er's contract and that a hearing on the recommendation would
be held on March 2 3 , 1987. The hearing was held and the day
after the Board sent the Teacher a termination letter stating
that the Board had "voted to uphold their decision to termi-
nate your contract." The reason given for the termination
was "the elimination of the full-time P.E. Health position
due to budgetary cutbacks for the 1987-1988 school year."
The Teacher appealed the decision to the County Superin-
tendent. A recorded hearing was held on June 3, 1987. At
the hearing the Teacher raised the issue of whether he had
been terminated properly according to the procedure outlined
in 20-4-204, MCA. The County Superintendent affirmed the
Board's decision concluding that "the procedure utilized by
the Respondent in changing the Petitioner's position from
full-time to part-time follows the guidelines set out by the
Montana legislature in § 20-4-204, MCA." The County Superin-
tendent also concluded that because the Teacher had tenure,
the Board must offer him the new half-time P.E position, and
then ordered that the Teacher be reinstated in the half-time
position at the half-time salary.
The Teacher appealed the County Superintendent's order
to the State Superintendent of Public Instruction. The State
Superintendent affirmed the decision to terminate stating the
same reasons set forth in a nearly identical case (see
Rirrer v. Trustees, Wheatland County School District No. 16,
OSPI 133-87) that technical irregularities did not affect the
legality of the termination of a tenured teacher where the
Board had "substantially complied" with the statute. The
State Superintendent also affirmed the decision requiring the
school district to offer the Teacher the half-time position.
The District Court then affirmed the decision in its
entirety, concluding that the "teacher was accorded all of
his rights under the statute" and that it did not have the
"authority to disturb the well-reasoned administrative
decisions that have been made." The Teacher now appeals that
portion of the order affirming his termination and the Board
appeals the portion requiring it to reinstate the Teacher in
the new half-time P.E. position.
First, we note that the scope of review of administra-
tive decisions is somewhat more limited. See $ 2-4-704 (2),
MCA. Our function as an appellate court reviewing an admin-
istrative decision is not to substitute our judgment for that
of the County Superintendent but rather to review the whole
record to determine if the administrative findings are clear-
ly erroneous or if the County Superintendent's conclusions of
law constitute an abuse of discretion. Section 2-4-704 (2),
MCA, Booth v. Argenbright (1987), 225 Mont. 272, 278, 731
P.2d 1318, 1320; Yanzick v. School District #23 (1982), 196
Mont. 375, 388-389, 641 P.2d 431, 439.
11.
The acceptance by the Board of the recommendation for a
reduction in force and the recommendation to terminate the
tenured Teacher before notifying the Teacher of the recommen-
dation and affording the opportunity of a pre-termination
hearing violated the statutory procedure for terminating
tenured teachers. That procedure is set forth in S
20-4-204, MCA, which provides in pertinent part:
20-4-204. Termination of tenured teacher services.
...
(2) Whenever the trustees of a district receive a
recommendation for termination, the trustees shall,
before April 1 of the current school fiscal year,
notify the teacher of the recommendation for termi-
nation and of the teacher's right to a hearing on
the recommendation.
(4) The trustees shall:
(b) Resolve - - conclusion - - hearing to
at the of the
terminate the teacher or reject the recommendation
for termination. (Emphasis added. )
Section 20-4-204, MCA. The above language is the result of a
1985 amendment. Under the statute's former language the
Board could act on a termination recommendation prior to
notifying the teacher of the termination and of the right to
a hearing. If requested, the hearing was for the Board to
"reconsider" their termination action. - S 20-4-204, MCA
See
(1983).
The 1985 amendment attempts to correct a perceived
unfairness in the statute's procedure for terminating tenured
teachers. The amendment sought to prevent the situation
arising under the former statute where the Board of Trustees
would vote to terminate a tenured teacher immediately after
an ex parte recommendation from the superintendent. In that
situation the Board could already have formed an opinion
regarding the grounds for the termination, and therefore the
efforts of a teacher to refute such grounds and overturn a
decision to terminate at a subsequent hearing would be inef-
fectual if not futile. - Birrer v. Trustees, Wheatland
See
County School District No. 16. (Mont. 1990), P. 2d -I
- St.Rep. - (cause no. 89-401-, decided Feb. 6, 1990).
The current statute now requires that the Board not make a
decision respecting a recommendation for termination until.
after the tenured teacher is afforded a hearing. -
See
20-4-204 (4)(b), MCA.
Therefore, we must disagree with the District Court's
conclusion that the Teacher was "accorded all of his rights
under the statute." The statutory procedure was not
followed.
We also reject the Board's argument that it did not
accept the substance of the recommendation but merely ac-
knowledged receipt of it. The County Superintendent found
that the District Superintendent made a recommendation to
eliminate the full-time P.E. position, that this recommenda-
tion was accepted, and that the Board eliminated the position
and created a new half-time position. The findings then
indicate that the District Superintendent recommended that
the Teacher not be rehired because the position no longer
existed. While no finding was made that the Board specifi-
cally voted to terminate this particular teacher, the
minutes of the Board meeting indicate that after the District
Superintendent recommended that the Teacher not be rehired
the Board then unanimously voted to "accept the administra-
tive recommendation that Mr. Ray Harris be notified of
non-renewal of his contract due to the elimination of the
full-time P. E. position." That this decision was made
prior to the necessary hearing is also evident from the
post-hearing notice of the Board's decision which stated that
the Board -
"voted - uphold
- to . . . [its] decision to terminate.
We further reject any argument that the procedure fol-
lowed in the termination was merely a "technical" irregulari-
ty or that the Board "substantially complied" with the
termination statute. The very purpose of the 1985 amendment
was to enact a technical requirement guaranteeing tenured
teachers a pre-termination hearing prior to any decision by
the Board. The legislature sought to protect tenured teach-
ers from unjustified terminations by requiring that school
trustees keep an open mind relating to the suggested termina-
tion until both sides have an opportunity to be heard. -
See
Birrer, supra.
Notwithstanding the above, we affirm the termination
because under these facts the errors committed here did not
cause the teacher substantial prejudice. The present case is
an appeal from a lower appellate tribunal which in turn based
its conclusions on a review of the printed record. The
procedure in appealing to this Court is identical to that
used in any other district court decision. -
-
Booth, 731, P.2d
at 1321; Yanzick, 641 P.2d at 439. The distinction is that
here, the County Superintendent, not the District Court, was
the trier of fact:
(2) The court may not substitute its judgment for
verse or modify =
that of the agency as to the weight of the evidence
on questions o f fact. . . . The court may -
decision - - agency] if
[of an
substanEa1 rights - - ~ p e l l a n t - -
of the
re-
have be=
prejudiced because the administrative findings,
inferences, conclusions, or decisions are:
(a) in violation of constit,utionalor statuto-
ry 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
(9) because findings of fact, upon issues
essential to the decision, were not made although
requested. (Emphasis added.)
Section 2-4-704 (2), MCA. Here, the Teacher was not accused
of poor performance, incompetence, immorality, unfitness or
violation of Board policy. He was not terminated for any
personal reason. Nor did the teacher allege that the reduc-
tion in force was an attempt to masquerade any of the forego-
ing reasons. He admittedly was terminated solely due to the
District's poor financial condition, a condition of which the
Board was surely aware. If the Board had any pre-formed
opinion when they voted on the recommendation to terminate,
it was not singly the result of the ex parte recommendation
of the District Superintendent. Rather, it resulted as much
or more from their own knowledge of the financial situation
in the District. While several grounds for reversal under 5
2-4-704, MCA, could be alleged in this case, the crucial
determination for reversal is whether "substantial rights of
the appellant have been prejudiced." Under the particular
facts of this case, no substantial prejudice occurred and the
purposes of the procedural statute, 20-4-204, MCA, to
protect tenured teachers from pre-formed opinions and ex
parte representations, were not contravened. Birrer, supra.
The District Court did not abuse its discretion in affirminq
the lower tribunals1 decision because under these facts no
prejudice occurred.
On cross appeal the Board maintains that the County
Superintendent, and in turn the State Superintendent and the
District Court, erred in holding that the Distri-ctmust offer
the former full-time teacher the newly created half time
position.
We disagree. First, we note once again that
administrative decisions may be judicially reversed "if
substantial rights of the appellant have been prejudiced."
Section 2-4-704 (2) , MCA. Here, the Teacher was terminated
solely for financial reasons, not because the Board had any
criticism of his performance. Indeed, if his performance had
been at issue the termination would have been unlawful. The
School District cannot claim that it was prejudiced by the
decision requiring it to employ an admittedly qualified
former full-time tenured teacher in the half-time position.
We also endorse the District Court's conclusion that
this Court's decision in Massey v. Argenbright (1984), 211
Mont. 331, 337, 683 P.2d 1332, 1335, is controlling and
requires that the teacher be offered the part-time position.
In Massey, we held that the language of the tenure statute, 5
20-4-203, MCA,--which guarantees teachers employment "at the
same salary" and in a "comparable position of employment"
--cannot be given a broad meaning when a school district
wishes to reassign a tenured teacher to another position and
at the same time be construed narrowly when a district choos-
es to terminate a tenured teacher. Section 20-4-203, MCA;
Massey, 683 P.2d at 1335. The Board correctly points out
that 5 20-4-203, MCA, guarantees this protection unless the
teacher is terminated under § 20-4-204, MCA. Once terminat-
ed, the teacher no longer retains tenure rights. See
- §
20-4-203, MCA. The Board then argues that it performed two
distinct administrative acts: (1) elimination of the full-
time P.E. position and, consequently, termination of the
Teacher holding it, and (2) creation of a new half-time P.E.
position.
We reject this distinction as artificial. As the State
Superintendent noted, the position held by the teacher was
actually reduced from full-time to half-time; to interpret
the Board's action as eLiminating an old position and treat-
ing a new position involves a hypertechnical distinction that
could seriously threaten the value of tenure. For us to hold
otherwise would permit school boards to circumvent tenured
rights by asserting, as this Board does, that a teacher is
terminated in his or her full-time position but that the
remaining half-time job, with identical duties other than
hours of service, is an entirely new position for which a
tenured teacher would be entitled to no consideration.
The P.E. position resulting from the reduction is clear-
ly comparable to the original full-time position. The Dis-
trict Court did not err in affirming the administrative
decision requiring the Board to offer the teacher the posi-
tion. Moreover, notwithstanding the Board's failure to
follow the proper termination procedures set forth in §
20-4-204, MCA, no preiudice resulted - - - case that would
in this
warrant reversal of an administrative decision under S
2-4-704 ( 2 ) , MCA.
AFFIRMED.
We Concur: A