IN THE SUPREME COURT OF THE STATE OF MONTANA
MICHAEL BIRRER,
petitioner and Appellant,
-vs-
TRUSTEES, WHEATLAND COUNTY SCHOOL DISTRICT
NO. 15, and NANCY KEENAN, Superintendent of
public Instruction,
Respondents and Respondents.
APPEAL FROM: District Co.urt of the First ~udicialDistrict,
In and for the County of Lewis & Clark,
The Honorable Thomas Honzel, J.udge presiding.
COUNSEL OF RECORD:
For Appellant:
Emilie Loring; Hilley & ~oring,Missoula, Montana
For Respondent:
Chadwick Smith; smith Law ~ i r m , Helena, Montana
Beda J. ~ o v i t t ,Office of public Instruction, Helena,
Montana
submitted on ~riefs: Nov. 21, 1989
Decided: February 6, 1990
Filed:
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4 Clerk
~usticeJohn C. Sheehy delivered the Opinion of the Court.
In this case, we affirm the termination of a tenured teacher
by the Wheatland County School District No. 16, not on the grounds
of ltsubstantial compliancen with the applicable termination
statute, but upon the grounds that there was an unrefuted necessity
for a reduction in force by the School District and because the
procedure used by the Board in termination did not offend the
purposes of the termination procedure statute ( 3 20-4-204, MCA).
Accordingly, we affirm the decision of the District Court,
First Judicial District, Lewis and Clark County, which in turn
affirmed the decision of the State superintendent of public
Instruction, the Wheatland County Superintendent of Schools and the
School District.
Michael Birrer was a tenured music teacher employed in the
Wheatland County High School at Harlowton. On March 9, 1987, the
school trustees accepted the written recommendation of Harlowton
superintendent Gary Scott that the teaching positions held by
Birrer and one other teacher be eliminated because of over-
staffing at the secondary level and lack of available funding.
This recommendation required that the contracts of the two teachers
not be renewed for the 1987-1988 school year. On March 9, 1987,
the trustees accepted the recommendation of the Superintendent.
On March 10, 1987, the Board, through its chairman, notified Birrer
in writing that the Board had voted not to renew his contract. A
hearing on Birrerls termination was set for a special meeting of
the Board on March 30, 1987. Birrer appeared at the special
meeting but did not offer any evidence or testimony refuting the
necessity for the reduction in force. The Board decided to let the
decision of termination llstandlland on April 1, 1987, the chairman
wrote Birrer a letter that the Board "did reaffirm b y unanimous
vote their decision made at the regular March 9, 1987 meeting not
to renew your teaching contract.I1
Birrer appealed to the Wheatland Superintendent of Schools who
affirmed the termination, as did the Superintendent of Public
Instruction on further appeal. ~ i r r e r then appealed to the
District Court which affirmed the termination and this appeal
followed.
The acceptance by the trustees on March 9, 1987, of the
recommendation for a reduction in force and to terminate Birrer,
a tenured teacher, before notifying the teacher of the
recommendation and giving the teacher a hearing thereon, clearly
violated 5 20-4-204, MCA. That statute provides:
20-4-204. Termination of tenured teacher services.
(2) Whenever the trustees of a district receive a
recommendation for termination, the trustees shall,
before May 1 of the current school fiscal year, notify
the teacher of the recommendation for termination and of
the teacher's right to a hearing on the recommendation.
(4) The trustees shall:
(b resolve at the conclusion of the hearing to
terminate the teacher or to reject the recommendation for
termination.
The statute comprehends that the Board of Trustees not make
a decision respecting a recommendation for the termination of a
tenured teacher until after a hearing. In this case, the trustees
accepted a recommendation before the hearing was granted, and
reaffirmed the decision after the hearing.
The language of 5 20-4-204, MCA, foregoing, is the result of
an amendment to this statute in 1985 (Ch. 56, Laws of Montana
(1985)). Until 1985, the trustees were empowered to act on a
termination recommendation, and then notify the teacher of the
termination and of the right to a hearing. The 1985 amendment was
an attempt to correct what had been perceived as an unfair
procedure for terminating tenured teachers. The purpose of the
amendment was to prevent pre-formed opinions by the trustees
against which the efforts of a teacher to overturn at a subsequent
hearing would be ineffectual.
Birrer maintains in this appeal that the clear violation of
the procedural statute entitles him to reinstatement and that the
District Court erred in holding that llsubstantial compliance with
the relevant statute" was sufficient for a valid termination. The
trustees, on the other hand, claim that Birrer was afforded due
process in this case and that technical irregularities in the
procedure of termination do not affect the legality of his
termination.
The trustees rely on language contained in the decision of
this Court in Montana Power Co. v. Fondren (1987), 226 Mont. 500,
511, 737 P.2d 1138, 1145, that due process requires only notice and
hearing "at a meaningful time and in a meaningful manner." That
language is not applicable here, however, because in the
termination of a tenured teacher, the legislature has specified the
procedures to be taken. Section 20-4-204, MCA, in itself defines
due process for the termination of a tenured teacher.
We must also reject the argument of the school trustees that
the procedure followed in the termination of Birrer was merely a
lltechnicalll irregularity, not affecting due process. The
lltechnicalityllhere goes to the very heart of the 1985 amendment
by the legislature. It is obviously the public policy adopted by
the legislature to protect tenured teachers from unjustified
terminations by requiring that school trustees keep an open mind
relating to the suggested termination until both sides have an
opportunity to be heard.
Notwithstanding the foregoing, however, we affirm the
termination of Birrer because of the obvious rectitude of the
trustee's decision. This is not a case where the teacher was
terminated for some personal reason. He was not accused in any way
of incompetence, immorality, unfitness or violation of Board
policy. He faced no bias or unfair attitude. He was personally
liked. What ~ i r r e rfaced at the March 30 special meeting was the
undeniable and overwhelming state of the school finances and the
requirement that two teachers be eliminated in order to meet
budgetary constraints. The trustees may have had a pre-formed
opinion on March 9, 1987, when they accepted the recommendation of
the School superintendent. That conclusion, however, was not
singly the result of the Superintendent's recommendation; the
trustees, in the very performance of their duties as trustees, were
surely aware of the financial situation, and were as much forced
to a reduction in force by that knowledge as by the recommendation
of the Superintendent.
We find, therefore, under the peculiar facts of this case,
that the purposes of the procedural statute, 5 20-4-204, MCA, to
protect the tenured teacher from pre-formed opinions or ex parte
presentations to the school trustees were not contravened here.
Birrer was terminated not because of lack of due process, but by
the inevitable force of financial events over which neither the
School District nor Birrer had any real control. For those
reasons, we affirm the District Court, but we do not hereby condone
the failure of the trustees to follow the procedures of 5 2 0 - 4 -
204, MCA. Costs on appeal to Birrer.,
We Concur: /"
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