NO.98-615
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 175
DR. MARTHA E. QUICK,
Petitioner, Respondent,
and Cross-Appellant,
BOZEMAN SCHOOL DISTRICT #7,
C. SmitL
iJ
'iEi?U OF SUPREME COURT
S T A T E OF MONTANA
BOARD OF TRUSTEES,
Respondents and Appellants.
APPEAL, FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Lynda S. White, Sedivy, White & White, P.C.; Bozeman, Montana
Robert C. Brown, Poore, Roth & Robinson, P.C.; Butte, Montana
For Respondents:
Karl P. Seel, Attorney at Law; Bozeman, Montana
Submitted on Briefs: March 18, 1999
Decided: July 27, 1999
~ Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
71 The petitioner, Dr. Martha E. Quick, petitioned the District Court for the Eighteenth
Judicial District in Gallatin County for judicial review of the decision by the State
Superintendent of Public Instruction to affirm her termination of employment by the
respondent, Bozeman School District No. 7 Board of Trustees. The District Court reversed
the State Superintendent. The Board appeals from the judgment of the District Court. We
reverse that judgment.
72 We restate the dispositive issues:
73 1. Did the District Court exceed its scope of review of an administrative agency
decision pursuant to the Montana Administrative Procedures Act?
74 2. Did the District Court err when it concluded that there was good cause for
Quick's termination?
75 3. Did the District Court err when it concluded that the notice of termination was
sufficiently clear and explicit to satisfy 5 20-4-204(1)(b), MCA?
76 4. Did the District Court err when it denied Quick her attorney fees?
FACTUAL BACKGROUND
77 Dr. Martha Quick was a tenured administrator for Bozeman School District No. 7.
In 1995, while Quick served as the assistant principal for Bozeman Senior High School, the
District began the hiring process for new middle school and high school principals. Quick
. .
applied for both positions. She was selected to interview for the middle school principal
position.
78 The day prior to the interview, Quick prepared a letter to the editor of the Bozeman
Daily Chronicle in which she stated that she had been victimized by the District
Superintendent, Dr. Paula Butterfield, and by the Board of Trustees. The letter described the
middle school principal selection process as "a sham" and urged the Trustees to "halt the
[hiring] procedures and conduct an independent investigation of the process." Immediately
after the interview, Quick complimented the chairman of the interview committee, Diane
McDonough, on the fairness and integrity of the hiring process. Quick then delivered her
letter to the Chronicle, in which it was later published.
79 Quick was not hired for either principal position, and she filed a grievance with the
Board of Trustees in which she alleged violations of the District's hiring policies. Her
grievance was based in part on her contention that the successful candidate for the high
school principal position, Godfrey Saunders, was unqualified for the position. However,
Quick had previously stated to Saunders that her grievance against the District had nothing
to do with him.
710 The Trustees accepted Butterfield's recommendation of Saunders for the high school
principal position, but rejected the recommended candidate for the middle school principal
position. Butterfield then recommended the chairman of the selection committee,
McDonough, be promoted from her position as an elementary school principal to the middle
school principal position.
71 1 At a meeting which included Butterfield and the principals-elect of the middle schools
and the high school, McDonough and Saunders stated that they would not accept their new
positions without assurances that Quick would not have an administrative or teaching
position in their schools. They cited a lack of ability to supervise Quick, and a loss of
confidence in her integrity and judgment. Dr. Anne Olson, principal of the District's other
middle school, was also present and also expressed her unwillingness to have Quick placed
in her school.
712 Butterfield decided to recommend to the Trustees that Quick's contract not be renewed
at the end of the 1996 school year. The District notified Quick of the decision at the same
time it notified her that her official grievance was denied. The reasons for the
recommendation were set forth in fifteen paragraphs. In general, the recommendation cited
the refusal by other administrators to work with Quick because of a lack of trust, loss of
confidence, belief that she had exercised poor professional judgment, and belief that she
disrupted the efficient administration of the District.
113 After an eight-hour hearing, during which both Quick and the District presented
testimony, the Board of Trustees unanimously voted not to renew Quick's contract. Quick
appealed the decision to the County Superintendent, who conducted an additional ten-day
hearing de novo. The County Superintendent affirmed the Trustees' decision. Quick
appealed to the State Superintendent, who affirmed the County Superintendent's decision.
114 Quick then filed a petition for judicial review of the agency decision in the Eighteenth
Judicial District Court. The District Court reversed the agency decision and ordered that
Quick should be reinstated and receive her back wages and benefits.
ISSUE 1
71 5 Did the District Court exceed its scope of review of an administrative agency decision
pursuant to the Montana Administrative Procedures Act?
716 The scope of a district court's review of an agency decision is a question of law,
because the power to review agency decisions is provided for in the Montana Administrative
Procedures Act.
717 Section 2-4-702(1)(a), MCA, of the Montana Administrative Procedure Act provides
that "[a] person who has exhausted all administrative remedies available within the agency
and who is aggrieved by a final decision in a contested case is entitled to judicial review
under this chapter." Section 2-4-704, MCA, describes the method and scope of review:
(1) The review shall be conducted by the court without a jury and shall
be confined to the record. In cases of alleged irregularities in procedure before
the agency not shown in the record, proof thereof may be taken in the court.
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:
(a) the administrative findings, inferences, conclusions, or decisions
are:
(i) in violation of constitutional or statutory provisions;
(ii) in excess of the statutory authority of the agency;
(iii) made upon unlawful procedure;
(iv) affected by other error of law;
(v) clearly erroneous in view of the reliable, probative, and substantial
evidence on the whole record;
(vi) arbitrary or capricious or characterized by abuse of discretion or
clearly unwarranted exercise of discretion; or
(b) findings of fact, upon issues essential to the decision, were not made
although requested.
118 "[Tlhis 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. This latter standard includes determining whether the law was properly applied
to the facts." Baldridge v. Board of Trustees, Rosebud County Sch. Dist. (1994), 264 Mont.
199, 870 P.2d 71 1 (citation omitted).
719 In this case, the District Court reviewed the County Superintendent's findings of fact
and conclusions of law challenged by Quick in her petition. It concluded that the findings
were supported by reliable, probative and substantial evidence, and that none of the
Superintendent's conclusions were in error. The District Court then went on to conclude that
the County Superintendent failed to consider Quick's due process and First Amendment
rights, as well as evidence of retaliation. Because the District Court did not include
retaliation as a basis for its order reversing the agency decision, however, we do not consider
it further on appeal. See Rule 1, M.R.App.P.
A. Due Process
720 The District Court concluded that the County Superintendent erred when she failed
to consider the full due process requirements in School District Policies 152l(5) and (6),
"Principals for Board-Administration Relations," which state:
5. Justice and Due Process
The board will follow due process in the conduct of all its official
personnel business and personnel business will be conducted only officially.
Such procedures will be implemented by the administration with appropriate
advice of legal counsel.
It is considered inappropriate for a Trustee or an administrator to make
any evaluative statement (explicit or inferred) about a teacher, an
administrator, or a Trustee outside the professional channels established for
evaluation of personnel.
It is each administrator's responsibility to be familiar with all the steps
and legalities involved with due process procedures, as they apply to this
district. Whenever a matter is brought before the board by the administration,
it will be the administrative responsibility to provide concise, accurate
information showing how due process was followed on the case in question.
6. Complaints. Criticism. and Rumors
All complaints, criticism and rumors from the public shall follow either
an informal inquiry to the superintendent using the attached Trustee Concern
Form or the formal process for resolution as provided in policy #43 12.
Constructive criticism which emanates from the board or a trustee shall
be directed to the appropriate administrator only through the superintendent.
The superintendent may process the concern using the review of services, an
evaluation process, or a one-to-one review of the situation. Any concerns,
complaints, criticism, or rumors that are of concern to the board will be
pursued only through the superintendent in accordance with acceptable
procedure.
When a trustee or administrator knows that criticism, complaints, or
rumors are unfounded, helshe has an ethical responsibility to provide
complete, honest information to refute the allegation.
When dealing with rumors, complaints or criticisms, due process will
be followed. This includes following the chain of command in dealing with
issues. Anonymous complaints will be ignored.
721 One of Quick's proposed findings of fact, submitted to the County Superintendent,
would have found that the discussion between Butterfield and the principals was an
"evaluative discussion" which occurred outside of professional channels. Even though the
County Superintendent did not accept Quick's proposed finding, the District Court cited this
proposed finding, apparently as a basis for its conclusion that "it was 'inappropriate' for
District Administrators to meet outside the professional channels established for evaluation
of school personnel and without due process . . . being accorded." The Court further
concluded that because the meeting took place outside of the normal evaluative channels,
Quick was denied notice and an opportunity to be heard, thus depriving her of her due
process rights.
722 The reviewing body may not substitute its judgment for that of the fact-finder as to
the weight of the evidence on questions of fact. See 5 2-4-704(2), MCA. The County
Superintendent considered the evidence but did not find that an "evaluative discussion"
within the meaning of Policy 152l(5) took place. The County Superintendent heard the
testimony of those present at the meeting, and had an opportunity to witness their demeanor
as witnesses. The District Court did not have the benefit of these and other intangible aspects
of the testimony. Section 2-4-704(2)(b), MCA, provides that "a reviewing body may reverse
or modify an agency decision if substantial rights of the appellant have been prejudiced
because findings of fact essential to the decision were not made although requested," but the
District Court made no such analysis. Therefore, we conclude that the District Court
exceeded the scope of its authority as a reviewing court, when it substituted its judgment for
that of the County Superintendent regarding the weight of the evidence.
723 The District Court also concluded that Quick was deprived of her due process rights
pursuant to Policy 1521(6); however, that policy applies on its face only to the way
complaints made by a member of the general public should be handled, and we conclude that
it is inapplicable to the instant case.
B. First Amendment Considerations
124 The District Court also concluded that the County Superintendent erred when she
failed to apply the public employee--free speech balancing test from Pickering v. Board of
Educ. of Township High School D s .(1968) 391 U.S. 563,88 S. Ct. 173l , 2 0 L. Ed. 2d 81 1.
it
The Trustees contend that the District Court substituted its judgment for that of the County
Superintendent regarding the relationship of Quick's letter to her termination.
125 The County Superintendent made no findings of fact which indicated that Quick's
termination was the result of, or in retaliation for, her letter to the editor criticizing the school
district's hiring process. The County Superintendent did find that one of the administrators
decided that Quick was not trustworthy because the administrator believed statements in the
letter to be inconsistent with other statements Quick made to her personally.
126 Although it did not explicitly say so, the District Court apparently concluded that the
County Superintendent misapprehended the evidence when she failed to consider evidence
that Quick's letter was directly linked to the decision to terminate her. The Court stated that
the time frame in which the letter to the editor was published, and various administrators'
refusals to work with Quick, required that the County Superintendent address the issue of
whether Quick's termination violated her First Amendment rights. In support of this
interpretation, the District Court cites to the County Superintendent's finding of fact No. 39,
that there was a "divisive polarization of staff and administration . . . which began in
December of 1995 and January of 1996." The letter to the editor was published on or around
December 3, 1995.
127 In a memorandum attached to her findings and conclusions, the County
Superintendent addressed the free speech issues raised by Quick during the hearings. The
County Superintendent concluded that the questions of whether the writing of the letter was
a violation of policy, raised by the district, or whether the writing of the letter was protected
by the First Amendment, raised by Quick, did not require resolution, because the basis for
Quick's termination was a loss of confidence and trust on the part of the other administrators,
based upon what they perceived to be inconsistencies and contradictions in Quick's dealings
with them.
728 In other words, the County Superintendent concluded that it was not the act of writing
and publishing the letter which served as a basis for Quick's termination. Rather, it was the
perceived inconsistency of statements that Quick made to other administrators. The fact that
one of the statements which was perceived to be inconsistent was made in a way that was
possibly protected speech is irrelevant to the issue of whether those perceived
inconsistencies, rather than the speech, could serve as a basis for termination. The Trustees
argued before the County Superintendent that the letter violated District Policy and urged
that Quick's termination be affirmed on that basis, which would have required the County
Superintendent to undertake a Pickering analysis. But the County Superintendent did not
base her decision to affirm the termination on Quick's letter. Instead, she found that other
good causes existed to support Quick's termination.
729 Unlike the instant case, in each of the Pickering analysis cases cited by the District
Court in its order, and by Quick on appeal, it is the employee's exercise of free speech rights
that served or might have served as the basis for the employee's termination. See, e.g.,
Pickering, 391 U.S. 563, 88 S. Ct. 1731,20 L. Ed. 2d 81 1; P e r v v. Sindermann (1972), 408
U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570; Jefries v. Harleston (2d Cir. 1995), 52 F.3d 9.
We agree with the Board of Trustees that a Pickering analysis was unnecessary in this case.
Here, the County Superintendent specifically found that Quick's exercise of free speech
rights did not serve as the basis for her termination. For the District Court to conclude
otherwise required a substitution of its own judgment for that of the County Superintendent's
as to the weight of the evidence, which was beyond the permissable scope of its review. We
conclude that the District Court erred when it concluded that the State and County
Superintendents did not properly consider Quick's First Amendment rights pursuant to
Pickering.
ISSUE 2
130 Did the District Court err when it concluded that there was good cause for Quick's
termination?
73 1 The District Court affirmed the conclusion of the County Superintendent, that "the
trustees had good cause to terminate Quick's services, based on the loss of confidence or trust
by five key administrators and their unwillingness to work with Quick." The Court
concluded that "except for the due process deficiency, the County Superintendent's finding
of good cause would otherwise have been supported by the evidence." Quick challenges this
conclusion and, on cross-appeal, contends that the general rule in Montana, expressed in
Yanzick v. School District #23 (1982), 196 Mont. 375, 641 P.2d 431, is that the board of
trustees must establish a "nexus" between a teacher's conduct and her effectiveness in the
classroom before it can meet the burden of proving that good cause exists for termination.
She contends that the opinions of the administrators and their unwillingness to work with her
do not establish "good cause."
132 In Stansberry v. Argenbright (1987), 227 Mont. 123,738 P.2d 478, this Court applied
the Yanzick standard to a decision to terminate a tenured teacher based on an alleged breach
of an agreement between the teacher and the trustees. We held that each case must be
considered based on its own facts to determine whether or not good cause has been
established and we concluded that the breach of an agreement between a tenured teacher and
the trustees may constitute good cause. See Stansberry, 227 Mont. at 132, 738 P.2d at 484.
733 In this case, as in Stansberry, the conduct which formed the basis for the Trustee's
decision to terminate Quick took place outside of the classroom setting. The County
Superintendent found that Quick engaged in conduct as an administrator and as an applicant
for the principal positions that undermined her credibility with five other administrators in
the School District. The conduct included malung inconsistent statements about the principal
hiring processes, criticizing past and present administrators during job interviews, and
misrepresenting her motives for filing a gnevance procedure with the School District.
734 The Board of Trustees has a responsibility to maintain an effective and efficient
school district. Based upon the County Superintendent's findings, we conclude that there is
a nexus between Quick's conduct and her ability to serve effectively and efficiently as a
school district administrator. The poor relationship between Quick and the other
- - -
..
administrators would impair their ability to work together. Therefore, we conclude that the
District Court did not err when it affirmed the County Superintendent's finding and
conclusion that good cause existed for Quick's termination.
ISSUE 3
735 Did the District Court err when it concluded that the notice of termination was
sufficiently clear and explicit to satisfy 5 20-4-204(1)(b), MCA?
736 Quick next contends that the termination letter failed to set forth the reasons for her
termination with sufficient clarity to satisfy the requirements of 5 20-4-204(1)(b), MCA,
which provides that "[tlhe recommendation must state clearly and explicitly the specific
reason or reasons leading to the recommendation for termination."
737 During the County Superintendent hearing, several paragraphs were struck from the
letter recommending Quick's termination, which had also served as notice to her of the
reasons termination was being recommended. On review, the District Court concluded that
most of the remaining paragraphs did not provide sufficient details to satisfy the
requirements of tj 20-4-204(1)(b), MCA, but that because the first two paragraphs of the
letter set forth reasons for termination with sufficient clarity and detail, any error in allowing
the remaining paragraphs was harmless.
738 Quick's principle argument is that the recommendation letter, as reduced to two
paragraphs by the District Court, lacked sufficient factual detail to support the allegations it
contained.
739 For a contested termination proceeding, the termination letter functions like a
charging instrument or a pleading; however, there are no formal requirements for what
information it must contain. It need only "be sufficiently detailed to inform the
[administrator] of the charges against [her] so [she] is reasonably able to formulate a
defense." Board of Trustees of Sch. Dist. #9 v. Superintendent of Pub. Instruction (1976),
171 Mont. 323,327,557 P.2d 1048,1050.
740 The first two paragraphs of the termination letter in this case state:
Pursuant to 20-4-204 M.C.A. I hereby submit my written
recommendation to the Bozeman Board of Trustees for termination of the
services of Martha E. Quick at the end of the current contract year, that is
June 30, 1996. This recommendation is based on a multitude of reasons, the
most significant of which is the fact that none of the administrators in
buildings where an assistant principal position is available are willing to have
Dr. Quick as a part of their administrative team nor do they wish to have her
assigned as a teacher in the classroom.
Godfrey Saunders, principal-elect of Bozeman High School, has stated
that if Dr. Quick is assigned to the high school as an assistant principal, he will
request that the Board of Trustees release him from his contract as high school
principal. Diana McDonough, principal of Sacajawea Middle School, has
stated that she would be unwilling to continue as the middle school principal
if Dr. Quick were reassigned to the Sacajawea Middle School. Dr. Anne
Olson, Chief Joseph Middle School Principal, based upon her prior supervision
of Dr. Quick which resulted in less that satisfactory evaluations of Dr. Quick's
performance and her transfer to an assistant principal position at the high
school, is also unwilling to have Dr. Quick retransferred to Chief Joseph
Middle School.
741 Some of the paragraphs that the District Court struck provided supporting details for
why the administrators were unwilling to work with Quick. Paragraph 3 alleged that the
administrators had lost faith in Quick's integnty and judgment. Paragraph 6 stated that two
other administrators had lost faith in Quick's professional judgment. Paragraph 12 alleged
that Quick ignored policies and procedures which required working within the chain of
command.
742 We conclude that these paragraphs provide Quick with enough information to enable
her to formulate a defense. While the letter did not set forth specific instances of conduct,
based on the content of the letter Quick knew that the superintendent and several of the
administrators in the District had lost faith, based on a perceived lack of credibility, in their
ability to work with her. We also note that Quick did in fact formulate a defense to these
allegations. She cross-examined the complaining administrators at length about their
working relationship with Quick, she presented testimony from other administrators within
the district describing their faith in her and their willingness to work with her, and Quick
herself testified about her willingness and ability to work with all of the other administrators
in the district.
743 We conclude that the District Court erred when it struck paragraphs 3,6, and 12 from 1
the termination letter. Examining the letter as a whole, we conclude that the termination
letter satisfied the requirements of 5 20-4-204(1)(b), MCA.
ISSUE 4
744 Did the District Court err when it denied Quick her attorney fees?
145 Because we reverse the judgment of the District Court and reinstate the decision of
the State Superintendent, affirming the County Superintendent's decision which upheld
Quick's termination, we need not address this issue.
146 We reverse the order of the District Court and reinstate the decision of the State
Superintendent.
Justices
Justice W. William Leaphart, concurring in part and dissenting in part.
747 I concur with the resolution of issues two, three and four. I dissent from issue one as
to the First Amendment claim.
748 The District Court concluded that the County Superintendent failed to consider Dr.
Quick's First Amendment rights by applying the public employee--free speech balancing test
in Pickering. In reversing the District Court, this Court agrees with the Board that a
Pickering analysis was unnecessary because the County Superintendent specifically found
that Dr. Quick's exercise of free speech rights did not serve as the basis for her termination.
The Court states:
For the District Court to conclude otherwise required a substitution of its own
judgment for that of the County Superintendent's as to the weight of the
evidence, which was beyond the permissible scope of review. We conclude
that the District Court erred when it concluded that the State and County
Superintendents did not properly consider Quick's First Amendment rights
pursuant to Pickering.
749 I disagree with the Court's determination that the County Superintendent specifically
found that Dr. Quick's exercise of free speech rights did not serve as a basis for her
termination.
750 The County Superintendent found that Dr. Quick wrote the letter to the editor of the
Chronicle while she was an employee of the School District and that it was delivered to the
Chronicle at noon on December 1,1995. The County Superintendent concluded that, due
to the loss of confidence and trust in Dr. Quick by key supervisory administrators and their
unwillingness to work with Dr. Quick, there was good cause for terminating Dr. Quick. The
County Superintendent stated: "Whether writing the letter to the editor was a violation of
policy or whether the letter is protected by the First Amendment does not require resolution.
However, this is not to say that the letter to the editor is irrelevant."
75 1 The Superintendent's determination that the First Amendment issue did not require
resolution is a legal conclusion. As such, the District Court, pursuant to its standard of
review under 8 2-4-704, MCA, had authority to reverse this conclusion of law if it
determined that it was in violation of constitutional provisions, affected by other error of law,
or arbitrary or capricious.
752 Here, the Superintendent stated that, although the First Amendment issue did not have
to be resolved, that was not to say that the letter to the editor was irrelevant. The importance
of the letter is clear fiom the references in the Superintendent's Memorandum to the
following two facts: 1) administrator Diana McDonough viewed the letter as being in direct
conflictwith Dr. Quick's communications to McDonough and thus the letter was a reason for
McDonough's loss of trust and confidence in Dr. Quick; 2) administrator Bill Franks said that
there was a divisive polarization of the administration after Dr. Quick wrote the letter to the
editor. Having stated the letter was not irrelevant and having cited two instances of
relevancy, it is clear that the Superintendent viewed the letter as a relevant if not key factor
in the decision to terminate.
753 Accordingly, I disagree with the Court's characterization that the letter was somehow
separate and distinct fiom the "other good causes" that existed to terminate Dr. Quick. I
would hold that the Superintendent erred as a matter of law in concluding that "whether the
letter is protected by the First Amendment does not require resolution."
19
754 As protected speech that was clearly relevant to the decision to terminate Dr. Quick,
the letter required application of the Pickering test. Because the Superintendent failed to
make the necessary findings under Pickering, I would affirm the District Court's reversal of
the Superintendent on issue one and remand for findings and conclusions under Pickering.