Baldridge v. Board of Trustees, Rosebud County School District 19

97-230

No. 97-230

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

ELMER R. BALDRIDGE

Petitioner and Appellant,

v.

BOARD OF TRUSTEES, ROSEBUD COUNTY
SCHOOL DISTRICT #19, COLSTRIP, MONTANA,
and NANCY KEENAN, Superintendent of Public Instruction,

Respondents and Respondents.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Michael G. Moses; Moses Law Firm, Billings, Montana

For Respondents:

Jeffrey M. Hindoien; Gough, Shanahan, Johnson & Waterman,
Helena, Montana

Submitted on Briefs: August 21, 1997

Decided: December 30,
1997

Filed:

_______________________________________

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Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

This case involves the 1988 dismissal by the Board of Trustees of Rosebud County
School District #19, Colstrip, Montana (Board), of science teacher Elmer R. Baldridge
(Baldridge). Baldridge appeals from the order of the Thirteenth Judicial District
Court,
Yellowstone County, which, in essence, judicially affirmed his dismissal by the
Board.
We affirm the District Court.
We restate the dispositive issue on appeal as whether, given the unchallenged
findings of fact before us, acting county superintendent of schools Shirley Barrick
erred
in concluding that Baldridgeþs conduct did not constitute incompetence, unfitness or
violations of Board policy under õ 20-4-207, MCA (1987).
BACKGROUND
This is the second time this lengthy litigation has been before this Court. Our
opinion in Baldridge v. Board of Trustees (1994), 264 Mont. 199, 870 P.2d 711
(Baldridge I), set forth at length the tortured procedural path this matter followed
between
the Boardþs dismissal of Baldridge in 1988 and our remand, in 1994, for further
proceedings. That history need not be repeated here. Suffice it to say that, in
Baldridge
I, we clarified the standards of review to be applied by the Montana Superintendent
of
Public Instruction (State Superintendent), district courts and this Court in cases
involving
the dismissal of a school teacher. Baldridge I, 870 P.2d at 714-18. We then
remanded
to the district court with instructions to remand to the State Superintendent for
remand
to the acting county superintendent of schools (County Superintendent) for the
purpose
of entering a decision complying with applicable statutes and rules. Baldridge I,
870
P.2d at 718.
On remand, County Superintendent Shirley Barrick (Barrick) entered extensive
findings of fact and conclusions of law relating to the Boardþs dismissal of
Baldridge.
Barrick found that, at the time he was terminated, Baldridge was a popular teacher of
various science classes with an excellent reputation; he had excellent teaching
skills and
consistently received the highest possible performance evaluations. Baldridge was
known
to be a þthorn in the sideþ of the district superintendent of schools and the Board,
however, because of his activist role in school matters.
In early April of 1988, high school principal Eileen Pearce (Principal Pearce)
received a letter from the parents of a student in one of Baldridgeþs science classes
complaining about an occurrence in Baldridgeþs classroom which became known as the

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þglove incident.þ Baldridge was cleaning the lab during class and sought student
assistance by placing a rubber glove on his hand, holding his hand in front of his
face,
palm in, and asking, þMay I have a female volunteer?þ He admitted repeating the
incident in several classes that day.
After a preliminary investigation into the glove incident, Principal Pearce
recommended to the district superintendent that Baldridge be suspended with pay
pending
a further investigation. Baldridge was suspended, an investigation took place which
resulted in additional allegations of inappropriate conduct by Baldridge and, after a
hearing, the Board dismissed Baldridge from his tenured teaching position on May 16,
1988. The stated reasons for the dismissal were incompetence, unfitness and
violation
of Board policies.
Baldridge appealed his dismissal to the County Superintendent and a hearing was
held on May 30, 1989. Both the Board and Baldridge presented evidence at the hearing
and a number of students testified. Testimony centered on nine instances of alleged
misconduct by Baldridge, including the admitted glove incident. The County
Superintendent determined the credibility of Baldridge and the other witnesses. She
then
found that, of the nine incidents alleged, eight of them--including the glove
incident--
occurred. Having found that the incidents occurred, the County Superintendent also
found that Baldridge's behavior was "inappropriate and not common place." She made
additional findings regarding each incident, to the effect that Baldridge had not
intended
to offend, the references he made were not intended to be sexual or phallic, and the
students were not offended by Baldridgeþs conduct.
In Barrick's extensive conclusions of law, she determined that õ 20-4-207, MCA
(1987), authorizes the trustees of a school district to dismiss a teacher for
þimmorality,
unfitness, incompetence, or violation of the adopted policies of such trustees.þ
She also
determined that, because Baldridge was a tenured teacher, his tenure could not be
taken
away except for good cause.
Noting that the bases the Board specified for dismissing Baldridge were
þincompetence, unfitness and violation of adopted policies,þ the County
Superintendent
analyzed each of those bases and concluded that the Board had not established that
Baldridge was either incompetent in his teaching duties or unfit to teach.
Moreover, she
determined that, while policy violations may have occurred, any such violation was
legally insignificant and did not tarnish or adversely affect the teacher-student
relationship. Having concluded that none of the statutory bases for dismissal
existed,
Barrick further concluded that the Board did not establish good cause for Baldridgeþs
dismissal and reversed the Boardþs decision to dismiss him.
The Board appealed the County Superintendentþs findings, conclusions and order
to the State Superintendent. The State Superintendent reversed the County
Superintendentþs decision, determining that Barrick erred as a matter of law in
concluding

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that the Board did not have good cause to terminate Baldridge, and Baldridge
petitioned
for judicial review. The District Court determined that the County Superintendent
erred
in concluding that Baldridge was not unfit and that any policy violations committed
by
him were legally insufficient to support dismissal; in other words, the court
determined
that the County Superintendentþs conclusions were incorrect in light of the findings
of fact
she made. As a result, the District Court affirmed the State Superintendentþs
decision,
effectively upholding the Boardþs decision to dismiss Baldridge. Baldridge appeals.
STANDARDS OF REVIEW
As noted above, we clarified the standards for review of the various levels of
decisionmaking involved in a teacher dismissal in Baldridge I. Pursuant to õ 2-4-
623,
MCA, a county superintendent's decision regarding the dismissal of a teacher by
school
trustees requires written findings of fact and conclusions of law, separately
stated, with
support provided for each conclusion of law. Baldridge I, 870 P.2d at 715. The
state
superintendent, in turn, reviews a county superintendent's decision pursuant to
10.6.125,
ARM, which is nearly identical to õ 2-4-704, MCA, under which district courts review
final decisions of administrative agencies in contested case proceedings. Baldridge
I, 870
P.2d at 716. In doing so, the state superintendent may not substitute his or her
judgment
for that of the county superintendent as to the weight of the evidence on questions
of
fact. Baldridge I, 870 P.2d at 716 (citation omitted).
In the event of judicial review of the state superintendent's decision, a
district court
applies the standards contained in õ 2-4-704, MCA. Baldridge I, 870 P.2d at 717. In
doing so, however, a district court must first decide whether the county
superintendent's
findings and conclusions were properly supported because, unless and until it does
so, it
cannot determine whether the state superintendent properly reviewed and either
affirmed
or reversed the county superintendent's decision. Baldridge I, 870 P.2d at 717-18
(citation omitted). Finally, this Court reviews findings of fact in administrative
cases to
determine whether the findings are clearly erroneous; we review conclusions of law to
determine whether they are correct. Baldridge I, 870 P.2d at 714-15. This latter
standard includes determining whether the law was properly applied to the facts.
Taylor
v. Taylor (1995), 272 Mont. 30, 33, 899 P.2d 523, 525.
Thus, because the County Superintendent is the trier of fact under õ 2-4-623,
MCA, we must focus initially on the County Superintendent's findings and conclusions

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before we can determine whether the State Superintendent or the District Court erred
thereafter. In this case, the County Superintendent's findings of fact are not
disputed.
The sole issue, at the initial stage of our review, is whether the County
Superintendent
correctly applied the law to the undisputed facts. If so, both the State
Superintendent and
the District Court erred in determining otherwise; if not, the District Court's
affirmance
of the State Superintendent's reversal of the County Superintendent's decision must
be
upheld.
DISCUSSION
Did the County Superintendent err in concluding that
Baldridge's conduct did not constitute incompetence, unfitness
or violation of Board policies pursuant to õ 20-4-207, MCA
(1987)?

At the outset, it is important to observe that, technically, the issue before
us is
whether the County Superintendent erred as a matter of law in concluding that good
cause
did not exist for the Board's dismissal of Baldridge. This is so because Baldridge
was
a tenured teacher, and we have repeatedly recognized that a teacher's tenure is a
substantial, valuable and beneficial right which cannot be taken away except for good
cause. Trustees, Missoula Cty. S.D. 1 v. Anderson (1988), 232 Mont. 501, 505, 757
P.2d 1315, 1318 (citing Yanzick v. School Dist. No. 23, Etc. (1982), 196 Mont. 375,
391, 641 P.2d 431, 440; State ex rel. Saxtorph v. District Court, Fergus County
(1954),
128 Mont. 353, 361, 275 P.2d 209, 214). Tenure is not the issue in this case,
however,
as Baldridge himself admits that tenure "cannot protect a teacher from acts of
immorality,
unfitness, incompetence, or violation of policies of the Board of Trustees." Thus,
the
threshold issue before us is whether the County Superintendent erred in concluding
that
Baldridge's conduct, as she found it to have occurred, did not constitute
incompetence,
unfitness or violation of Board policies under õ 20-4-207, MCA (1987).
We turn first to the County Superintendent's conclusion that Baldridge's conduct
did not constitute "unfitness" under õ 20-4-207, MCA (1987). "Unfitness" is not
defined
by statute in Montana. Our cases indicate, however, that a teacher may be unfit to
teach
if he or she engages in inappropriate conduct in the classroom or with students
outside
the classroom. See Johnson v. Beaverhead Cty. High Sch. D. (1989), 236 Mont. 532,
771 P.2d 137; Lincoln Cty. Sch. Dist. No. 13 v. Holden (1988), 231 Mont. 491, 754
P.2d 506; Yanzick, 641 P.2d 431. Indeed, The American Heritage Dictionary 1950
(3rd ed. 1992) defines unfit as "[n]ot meant or adapted for a given purpose;

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inappropriate."
As discussed above, Barrick received evidence regarding nine alleged instances
of
misconduct by Baldridge. She found that the glove incident--in which Baldridge
sought
student help in cleaning the lab by placing a rubber glove on his hand, holding the
gloved
hand in front of his face, palm in, and asking, "May I have a female volunteer?"--
occurred in three classes on one day. She also found that additional incidents
involving
Baldridge occurred as follows:
1. During a heated discussion with a student over a late assignment, Baldridge
ultimately responded to the studentþs request for an extra day in which to turn in
the work by telling the student to þStop, drop and blow.þ According to Baldridge,
þstopþ means quit arguing, þdropþ means drop the subject, and þblowþ means
þblow it out your ass,þ although Baldridge did not use the entire latter phrase with
the student.
2. Baldridge stated to several high school students that he would þgive [them]
twenty bucks if you make that kid cry.þ
3. Baldridge told a joke in class involving the term þtestesþ and had been telling
the joke to his students for five years.
4. In conversations with students, Baldridge made repeated indirect references to
himself and others as a þprick,þ by stating either þHeþs what Cinderella [Snow
White] did to her fingerþ or þYou guys might think Iþm a little ____,þ
accompanied by a motion to prick his finger.
5. Baldridge þflipped offþ or þgave the fingerþ to students during the school day
on school property.
6. After a female student stated that she could not þstand the sight of blood,þ
Baldridge replied, þ[S]he must have a rough monthþ or words to that effect.
Determining that Baldridge's conduct was "inappropriate and not common place,"
Barrick
ultimately concluded that it did not constitute "unfitness" under õ 20-4-207, MCA
(1987).
We disagree.
Each of the seven incidents is inappropriate conduct by a high school teacher
toward his students. None properly could be meant or adapted for the purpose of
teaching high school science students. Moreover, in addition to being inappropriate
conduct in and of itself, Baldridge's behavior demonstrated an inherent lack of
judgment
regarding a teacher's role and relationship with his students which relates directly
to
fitness to teach.
Nor need we determine here whether any one of the incidents, standing alone,
would constitute unfitness sufficient for dismissal under õ 20-4-207, MCA (1987). A
teacher who makes jokes about testes and a student's menstrual periods, flips off his
students and views it as "the highest form of respect," and makes gender-based
remarks
and innuendoes in his classroom is unfit to continue teaching as a matter of law.
The County Superintendent relied on Holden, as support for her conclusion that
Baldridge's conduct was insufficient to support dismissal for unfitness, but Holden
is
readily distinguishable. There, the teacher was dismissed for calling a student a

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"slob"
for being inattentive and slumped down in her chair, and for saying "move over,
Goodyear," to a child or group standing in front of a tape machine. Holden, 754 P.2d
at 507. The county superintendent concluded that the two incidents of inappropriate
language did not constitute a statutory basis for dismissal and we ultimately held
that
conclusion was not erroneous. Holden, 754 P.2d at 509. Here, we are faced with
numerous instances of inappropriate conduct by Baldridge, nearly all of which were
related to sex or gender on the face of it. Both the number of incidents and the
tone and
tenor of the conduct are of a greater magnitude in this case than in Holden.
Furthermore, while the County Superintendent's findings that Baldridge did not
intend to offend and that the students were not offended are supported by substantial
evidence, those findings are irrelevant to the issue before us. Baldridge's conduct
was
inappropriate on the face of it and it is his conduct and lack of judgment in
engaging in
the conduct, rather than his intent, which is at issue. In addition, the propriety
of a
teacher's conduct cannot be evaluated by viewing it through the eyes of the very
teenagers the teacher has a duty to educate and to guide. To do so almost certainly
would result in an educational environment unacceptable to school administrators,
educators, parents and society at large.
We conclude that the County Superintendent did not properly apply the law to the
facts, as she found them, regarding Baldridge's conduct. Therefore, we hold that
Barrick
erred in concluding that Baldridge's conduct did not constitute unfitness under õ 20-
4-
207, MCA (1987).
As discussed above, the State Superintendent determined that the County
Superintendent erred in concluding that Baldridge's conduct did not constitute
"unfitness"
and the District Court affirmed that determination. Because their decisions in that
regard
comport with our conclusion and holding above, it is not necessary to analyze the
decisions in any detail. Baldridge asserts error with regard to other portions of
those
decisions, however, and we address those arguments briefly.
First, Baldridge contends that the State Superintendent substituted her
judgment for
that of the County Superintendent on questions of fact in contravention of the
standard
of review contained in 10.6.125, ARM, õ 2-4-704, MCA, and Baldridge I. His
contention is based on the State Superintendent's insertion of words such as
"obscene,"
"egregious" and "derogatory" into her decision when such characterizations were not
set
forth in Barrick's decision. While it is true that the State Superintendent
characterized
some of the facts differently in reaching her decision than did the County
Superintendent,
she did not substitute her judgment for Barrick's regarding Baldridge's actual

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conduct.
The fact remains that the State Superintendent ultimately determined--and correctly
so,
as we held above--that the County Superintendent had erred as a matter of law. Thus,
any error by the State Superintendent in this regard was harmless.
Baldridge also points out that the State Superintendent first set forth the
correct
standard by which she was to review Barrick's decision and then stated that "[a]
review
of the record in this case leaves the definite and firm conviction that the County
Superintendent's order is incorrect." Baldridge is correct in contending that the
"definite
and firm conviction" test is the final prong of the clearly erroneous standard of
review
which applies to findings of fact. See Interstate Production Credit v. DeSaye
(1991), 250
Mont. 320, 323, 820 P.2d 1285, 1287. Again, however, the State Superintendent's
inclusion of this language did not prejudice Baldridge because the State
Superintendent
ultimately reached the correct decision.
Finally, Baldridge argues that the District Court, like the State
Superintendent,
substituted its judgment for Barrick's with regard to questions of fact. We
disagree. The
District Court accepted Barrick's undisputed findings of fact with regard to whether
Baldridge's conduct occurred. Applying the law to those facts, the court determined
that
the conduct Barrick found to have occurred constituted unfitness as a matter of law
under
õ 20-4-207, MCA (1987). As discussed above, the District Court's determination was
correct.
Section 20-4-207, MCA (1987), provides that a teacher may be dismissed for
"immorality, unfitness, incompetence, or violation of the adopted policies of [the
Board]."
Because the statute is written in the disjunctive, it is clear that only one of the
statutory
bases for dismissal need exist. We held above that Baldridge's conduct constituted
unfitness as a matter of law and that the County Superintendent erred in concluding
otherwise. As a result, we need not address Barrick's conclusions regarding
Baldridge's
competence or violations of policies adopted by the Board.
Affirmed.
/S/ KARLA M. GRAY

We concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

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Justice James C. Nelson specially concurs.

I concur.
In signing our opinion, however, I do not implicitly lend my support
to
some future argument that our decision in Lincoln Cty. Sch. Dist. No. 13 v. Holden
(1988), 231 Mont. 491, 754 P.2d 506, is still good law. While we have distinguished
that case from the one at bar based upon the number of instances of inappropriate
conduct
involved, this is a distinction without any real difference. It is not the number
of
instances of misconduct that counts but, rather, it is the substance of what was
said and
done and the complete lack of sensitivity and judgment that such comments and conduct
reflect, that is at the heart of the matter. A teacher calling a student a "slob"
for
inattentiveness or for slouching in his chair or analogizing an overweight child to
a blimp
cannot be considered acceptable or appropriate conduct by any measure. This is
especially true when many of today's young people are not only obsessed with their
appearance but suffer from low self-esteem and from life-threatening eating
disorders as
well. The classroom should be a place for nurturing not degradation.
I would overrule Holden to the extent that it stands for the proposition that
the
sorts of comments made in that case are not so serious as to be grounds for
dismissal.
The sophomoric behavior and insensitive and unprofessional comments at issue in that
case and in the one at bar have no place in the classrooms of this State nor do the
offending teachers.

/S/ JAMES C. NELSON
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion.
I do not disagree that several instances of Elmer Baldridge's conduct while
teaching high school students in Colstrip, Montana, were inappropriate. However, as
our
standard of review properly requires, I would defer to the County Superintendent's
judgment regarding the credibility of witnesses, the context of Baldridge's
comments, and
the impact of those isolated comments on his fitness as a teacher.
The Superintendent heard and observed the witnesses against Baldridge, and heard
and observed Baldridge's explanation for his comments, as well as his cross-
examination.
Ultimately, she concluded that the witnesses against Baldridge belonged to a clique
directly related to a school board member involved in efforts to discharge Baldridge
and
that their credibility was suspect. She also concluded that Baldridge's description
of
events, and the student witnesses who testified on his behalf, were credible.
Since the Superintendent's findings of fact are uncontested, and since the
majority

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opinion is based on its conclusion that Baldridge is unfit to teach, several
findings related
to his fitness are noteworthy. Therefore, I take this opportunity to set them forth
in their
entirety.
3. Baldridge has an excellent reputation as a teacher and person in the
school and community. The School Board Chairman testified Baldridge
evaluations were excellent prior to this incident [referring to the glove
incident]. Teachers and students testified Baldridge was one of the best
teachers they had ever known and was dedicated to the school and his
profession.

4. Undisputed testimony revealed Baldridge received the highest
possible evaluation the School District offers in every category and in every
evaluation he had received.

5. Baldridge often challenged alleged discrimination against Native
American students, bringing his concerns to both the administration and
School Board.

. . . .

7. Respondent High School Principal was Eileen Pearce. Pearce
testified Baldridge was viewed as a good teacher and had excellent teaching
skills. Baldridge could relate well with students. The sole critical
evaluation Baldridge received related to his relationship with the District
Superintendent Tokerud.

. . . .

10 Holly Granlund and Bill Medved were teachers in Respondent School
District. They testified about Baldridge as a teacher. They concurred
Baldridge was able to teach a variety of areas, that he was competent and
a supporter of activities of the school. They also testified Baldridge spent
more time in the school than other teachers and was considered a "model
teacher."

Juxtaposed with Baldridge's excellent credentials as a teacher, however, was his
activism
as a member of the teachers' collective bargaining unit which the Superintendent
found
placed him in an adversarial role with the administration. He chaired the grievance
committee, attended School Board meetings, occasionally questioned administrative
decisions, and brought up subjects sensitive to the administration during School
Board
meetings. While the Superintendent found that he was at no time insubordinate, he
was
known to be a "thorn in the side" of the School Superintendent and School Board
because
of his activist role.
Having established the context in which the complaints against him arose, it is
important to my consideration of his fitness to consider the Superintendent's

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specific
findings regarding each of his alleged offenses.
THE GLOVE INCIDENT
Superintendent Barrick found that the evidence regarding the incident and the
students' perception of the incident conflicted. Several students perceived it as a
reference to a female examination, several others interpreted it as a chauvinistic
solicitation of help to wash dishes. She weighed the testimony, found that the
incident
was not of concern to students at the time, was not perceived as a derogatory sexual
statement at the time and did not affect the student-teacher relationship between
Baldridge
and his students, nor his abilities to perform his duties in the classroom. She
found it
peculiar that the incident occurred on March 30, 1988, and was not complained of
until
April 11. She found it significant that neither the complaining parents nor the
principal
in her letter to the Superintendent attached any sexual connotation to the comment.
STOP, DROP, AND BLOW INCIDENT
Barrick made the following finding regarding this incident:
I heard and observed Baldridge's testimony and the testimony of the other
students. I find the testimony of Baldridge to be credible. I find that there
was no offensive meaning intended by these comments and there was no
sexual connotation attached to these words. This was a form of expression
used by Baldridge to enforce his policy of handing work in on time dealing
with a student who had contested Baldridge's grading system.

If this finding is uncontested, as the majority concedes, then Baldridge's comment to
"stop, drop, and blow" cannot serve as the basis for concluding that he was unfit to
teach.
TWENTY DOLLARS TO MAKE STUDENT CRY
The Superintendent found that Baldridge made the statement to several students
that he would "give you twenty bucks if you make that kid cry." Baldridge admitted
he
made these statements. However, the students involved testified that they did not
believe
he seriously intended that they physically assault another student and the
Superintendent
found "no basis for including this allegation as a basis for the termination of
Baldridge
nor was the statement intended to harm or threaten any student or person."
TESTES REFERENCE
Superintendent Barrick made the following undisputed finding regarding
Baldridge's reference to testes:
Baldridge admitted telling a joke in class that involved the term "testes".
Baldridge further testified he had used that particular joke for five years.
In its worst interpretation, this joke is innocuous and, if deemed
inappropriate by the School Board, should have been handled with a
warning to stop this activity. No warning was ever provided. Student
David Grover testified another teacher, during the same time period, at the
same school, told a similar joke. Connie Ramsey, testified that her
husband, a math teacher at Colstrip High School, had used a similar joke.

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No evidence was presented that any of these teachers were warned about
the telling of this joke.

Superintendent Barrick found that these comments were an acceptable form of
communication at the school at the time and had not offended any student and had not
adversely affected Baldridge's relationship with his students.
REFERENCE TO PRICKING FINGER
Baldridge admitted making references to pricking his finger but denied any
phallic
reference. Students testified that there was not a phallic interpretation of his
comments.
The Superintendent found that the statements were made but that the intent of the
reference was to "an irritation reference instead of any phallic reference and did
not
offend the students or suggest a sexual connotation at the time." She also found
that the
incident did not affect Baldridge's relationship with his students.
FLIPPING OFF INCIDENT
Several students testified that while such an incident occurred it was not done
with
the "classic connotation." Superintendent Barrick found:
I find these incidents occurred. I further find such behavior was
inappropriate and not commonplace. However, I also find the gesture was
not intended or perceived as offensive by any student at the time.

TIME OF MONTH INCIDENT
Baldridge admitted stating to a student who had remarked that she could not
stand
the sight of blood that "she must have a rough month" or words to that effect. He
also
stated that he instantly recognized the potential for misunderstanding and
immediately
apologized to the student in front of the whole class and again after class.
Superintendent
Barrick found after listening to the testimony of Baldridge and the student to whom
the
comment was made that:
I am persuaded by the testimony of both Thea Simpson and Baldridge that
this episode was an honest slip-of-the-tongue," after consideration of all of
the circumstances. Baldridge immediately apologized in front of the class
and then again on a one-on-one basis. Thea Simpson found his apology
sincere. I find this action demonstrates an affirmative response to an
embarrasing situation and recognition not to repeat this statement.

The Superintendent found that this comment did not adversely affect Baldridge's
relationship with his students and was not a basis for dismissal of a tenured
teacher.
I also find it significant that although these incidents are alleged to have
occurred
over a significant period of time, there was no prior effort to discipline Baldridge
because
of his classroom behavior and, in fact, no prior warnings that anything he had done

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in
the classroom or in the presence of students was inappropriate. While I conclude
that
several of Baldridge's remarks and, specifically, his gesture in the presence of
students
were inappropriate, the Superintendent, who listened to the witnesses and considered
Baldridge's excellent credentials as a teacher, apparently believed that repetition
of those
incidents could have been prevented by a warning and that termination of an admirable
career in teaching was unnecessary. It is obvious from the Superintendent's
findings that
she also felt that Baldridge's politics and relationship with the Superintendent
were the
more likely basis for his termination than any of the incidents complained of.
Because I believe that the Superintendent who listened to the witnesses,
including
the teacher involved, was in the best position to analyze the context of his remarks
and
judge his fitness to teach in light of not only those remarks but his entire record,
I would
give greater weight to those findings than the majority had done. I also conclude
that
based on those findings, when considered in their entirety, the Superintendent did
not err
as a matter of law when she concluded that the School District had not proven that
Baldridge was unfit to teach.
For these reasons I dissent from the majority opinion.

/S/ TERRY N. TRIEWEILER
Justice William E. Hunt, Sr., joins in the foregoing dissenting opinion.
/S/ WILLIAM E. HUNT, SR.

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