No. 04-675
IN THE SUPREME COURT OF THE STATE OF MONTANA
2006 MT 83
SCOBEY SCHOOL DISTRICT,
Respondent and Appellant,
v.
MIKE RADAKOVICH,
Petitioner and Respondent.
APPEAL FROM: The District Court of the Fifteenth Judicial District,
In and For the County of Daniels, Cause No. DV-10-2003-16,
Honorable Richard A. Simonton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jeffrey M. Hindoien, Gough, Shanahan, Johnson & Waterman,
Helena, Montana
For Respondent:
Laura Christoffersen, Knierim, Fewer & Christoffersen, P.C.,
Culbertson, Montana
For Amicus Curiae:
Karl J. Englund, Attorney at Law, Missoula, Montana (MEA-MFT)
Submitted on Briefs: July 20, 2005
Decided: April 25, 2006
Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.
¶1 Appellant Scobey School District appeals from the order of the Fifteenth Judicial
District Court reversing the Daniels County Superintendent’s decision upholding the
Scobey School District’s termination of Mike Radakovich as a tenured teacher. We
reverse.
¶2 We consider the following issue on appeal:
¶3 Did the District Court err in reversing the Daniels County Superintendent’s
decision upholding the Scobey School District’s termination of a tenured teacher?
BACKGROUND
¶4 Hired in 1987 by the Scobey School District (District), Respondent Mike
Radakovich (Radakovich) taught social studies at Scobey High School until 1994.
During this period, Radakovich possessed State certification and endorsement in only one
subject area, social studies. As a result, he did not teach other classes during his time at
the District.
¶5 In late 1993 and early 1994, District Superintendent of Schools Dustin Hill (Hill)
assessed the District’s financial situation and determined that expenditures had to be
reduced for the next fiscal year. While estimates fluctuated, Hill indicated that between
$98,000 and $114,000 had to be cut from the District’s budget. As such, Hill
recommended that the Scobey School Board (Board) reduce staffing costs in the
District’s schools by approximately $60,000. He met with Scobey High School Principal
George Rider to discuss staff reductions at the high school.
2
¶6 After his meeting with Principal Rider, Hill met with the Scobey High School
faculty to discuss the impending Reduction in Force (RIF), and provided the staff with
the criteria that would be used to make the RIF. The worksheet provided to the staff read
in pertinent part:
When considering a R.I.F. in the HIGH SCHOOL, the following criteria
will be considered:
1. Seniority and evaluations where possible.
2. Endorsements in the programs we offer.
a) Multiple endorsements will be preferred due to the versatility of using
teachers in more than one area.
b) Total number of students assigned to teachers must be consistent with
accreditation standards. e.g. Teachers in a significant writing program
maximum of 100 students.
¶7 After evaluating program needs, Hill recommended to the Board a restructuring of
teaching positions based upon the certifications of the teaching staff. As part thereof, Hill
recommended that the Board terminate Radakovich. The letter recommending
Radakovich’s termination, dated March 21, 1994, outlined the reasons behind the
recommendation, including recent school funding changes and Radakovich’s lack of
multiple-subject endorsements. Thereafter, the Board notified Radakovich of the
recommendation, and pursuant to statute, scheduled a hearing regarding the dismissal.
After the hearing, held on April 12, 1994, the Board voted unanimously to accept
Superintendent Hill’s recommendation, and took formal action to terminate Radakovich’s
3
employment. Pursuant to the restructuring, the District also formally terminated at least
one other teacher employed by the District.
¶8 As two other social studies teachers, one a tenured teacher junior to Radakovich
and the other a non-tenured teacher, were retained by the District under the restructuring,
Radakovich challenged his termination in binding arbitration under the Collective
Bargaining Agreement (CBA) between the District and the Scobey MEA. Following
arbitration, the arbitrator affirmed Radakovich’s dismissal, and Radakovich thereafter
sought relief from the County Superintendent of Schools and, ultimately, the State
Superintendent of Public Instruction, pursuant to § 20-4-204, MCA (1993). In each
instance he argued that his termination violated both § 20-4-203, MCA (1993), and the
CBA. Both superintendents affirmed his dismissal. However, upon judicial review, the
District Court reversed, finding that Radakovich’s rights under § 20-4-203, MCA (1993),
had been violated, and that his termination violated the CBA. Thereafter, the District
appealed to this Court.
¶9 In July of 2000, we reversed the order of the District Court, and remanded the
matter back to that court with instructions to remand to the County Superintendent for
further proceedings. Radakovich v. Board of Trustees, 2000 MT 176N, 302 Mont. 537,
12 P.3d 425 (Radakovich I). We determined that (1) the District Court had improperly
reviewed the arbitrator’s finding that Radakovich’s termination did not violate the CBA,
and (2) the County Superintendent had not only failed to enter appropriately supported
and reasoned findings of fact and conclusions of law as required by Baldridge v. Board of
4
Trustees (1994), 264 Mont. 199, 870 P.2d 711 (Baldridge I), but had also failed to
address Radakovich’s contention that his termination violated § 20-4-203, MCA (1993).
On remand, the County Superintendent was required to enter appropriate findings of fact
and conclusions of law, and to rule on the merits of Radakovich’s § 20-4-203, MCA
(1993), claim. Radakovich I, ¶ 29.
¶10 Following remand, and in accordance with Radakovich I, the County
Superintendent once again reviewed Radakovich’s appeal, made detailed findings of fact
and conclusions of law, and again concluded that the District had properly terminated his
contract. On appeal, the State Superintendent of Public Instruction affirmed. However,
the District Court again reversed, concluding that the use of the “multiple endorsements”
criteria violated both the CBA and § 20-4-203, MCA (1993), and further, that the
“multiple endorsements” criteria was unfairly applied.
¶11 Appellant Scobey School District appeals.
STANDARDS OF REVIEW
¶12 A tenured teacher has the right to appeal his or her dismissal to the County
Superintendent of Schools. Section 20-4-204(5), MCA (1993). Pursuant to §§ 20-4-
204(5), MCA (1993), and 2-4-623, MCA (1993), the County Superintendent, in turn,
must make concise and explicit findings of fact as well as conclusions of law. See
Baldridge I, 264 Mont. at 206, 870 P.2d at 715. In a case involving the dismissal of a
tenured teacher, the County Superintendent is the trier of fact. Baldridge v. Board of
Trustees (1997), 287 Mont. 53, 58, 951 P.2d 1343, 1346 (Baldridge II).
5
¶13 Upon final decision of a County Superintendent, a case may be appealed by either
party to the State Superintendent. Section 20-4-204(6), MCA (1993). The State
Superintendent reviews the decision of the County Superintendent pursuant to Rule
10.16.125, ARM. On review, the State Superintendent is confined to the record, and 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, 264 Mont. at 207, 870 P.2d at 716; see
also Rule 10.16.125, ARM.
¶14 “In the event of judicial review of the state superintendent’s decision, a district
court applies the standards contained in § 2-4-704, MCA.” Baldridge II, 287 Mont. at 58,
951 P.2d at 1346, citing Baldridge I, 264 Mont. at 209, 870 P.2d at 717. 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.
Baldridge II, 287 Mont. at 58, 951 P.2d at 1346.
¶15 Finally, this Court reviews administrative findings of fact to determine whether the
findings are clearly erroneous. Baldridge I, 264 Mont. at 205, 870 P.2d at 714. We
review conclusions of law to determine whether they are correct. Baldridge I, 264 Mont.
at 205, 870 P.2d at 714-15.
[B]ecause the County Superintendent is the trier of fact under § 2-4-623,
MCA, we must focus initially on the County Superintendent’s findings and
conclusions before we can determine whether the State Superintendent or
the District Court erred thereafter.
Baldridge II, 287 Mont. at 58, 951 P.2d at 1346.
6
DISCUSSION
¶16 After the first appeal to this Court, we remanded to the District Court with
instructions to remand to the County Superintendent for more thorough fact-finding as
required by § 2-4-623, MCA (1993). Radakovich I, ¶ 29. We also instructed the County
Superintendent to evaluate Radakovich’s claim under § 20-4-203, MCA (1993), and to
decide whether objective RIF criteria were fairly applied by the District. Radakovich I,
¶ 29.
¶17 The District Court concluded that the Daniels County Superintendent had
generated “concise and explicit statements of the underlying facts supporting his
findings,” and therefore fulfilled its duties under § 2-4-623, MCA. After review, we
agree that the County Superintendent complied with § 2-4-623, MCA. Further, the
County Superintendent entered three critical conclusions of law: that (1) there was “good
cause” for the RIF, (2) Radakovich’s termination did not violate § 20-4-203, MCA, and
(3) the use of “multiple endorsements” as a criterion was not only objective, but fairly
applied by the District. Based upon those conclusions, the County Superintendent ruled
in favor of the District, and upheld Radakovich’s dismissal. Ultimately, the District
Court concluded that the County Superintendent’s conclusions of law were “erroneous”
and reversed. For the following reasons, we believe the District Court’s reversal was in
error.
7
Was there good cause for the RIF?
¶18 “A teacher’s tenure is a substantial, valuable and beneficial right, which cannot be
taken away except for good cause.” State v. District Court, Fergus County (1954), 128
Mont. 353, 361, 275 P.2d 209, 214. However, it is also clear that the tenure right
must be balanced against the school board’s “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.”
Massey v. Argenbright (1984), 211 Mont. 331, 336, 683 P.2d 1332, 1334, citing Sorlie v.
School Dist. No. 2 (1983), 205 Mont. 22, 29, 667 P.2d 400, 403.
¶19 In its revised findings of fact and conclusions of law, the County Superintendent
determined that the District’s undisputed reduction in general fund revenue constituted
“good cause” for the RIF. This conclusion followed from Sorlie, where a school district,
because of a failure in state and federal funding, cut an administrative position within the
district which had recently been awarded to a teacher, and reassigned the teacher. Sorlie,
205 Mont. at 25, 667 P.2d at 401. Implicit within Sorlie’s holding is the principle that a
reduction in funding will constitute “good cause” for an RIF. Sorlie, 205 Mont. at 28,
667 P.2d at 403 (a reassignment “for legitimate financial constraints . . . is justifiable and
not contrary to tenure laws”); see also Massey, 211 Mont. at 336, 683 P.2d at 1334, and
§ 20-4-203(2), MCA (preserving the tenure status of a teacher RIFed because of a
district’s financial condition).
¶20 In reversing the decision of the County Superintendent, the District Court
concluded that the County Superintendent’s determination that there was good cause for
8
Radakovich’s termination was “erroneous,” and in violation of § 20-4-203, MCA (1993),
despite the undisputed fact that the district’s reduced funding required staff reductions. It
is apparent that the District Court’s analysis conflated the “good cause” requirement with
the application of §§ 20-4-203 and 20-4-204, MCA (1993).
¶21 “Good cause” must be established as a threshold requirement before a district may
dismiss a tenured teacher. See Massey, 211 Mont. at 336, 683 P.2d at 1334. If “good
cause” to dismiss a tenured teacher exists, then a district must follow the procedures
outlined in §§ 20-4-203 and 20-4-204, MCA (1993), to effectuate the teacher’s dismissal.
As discussed above, we held in Sorlie that a reduction in funding constitutes “good
cause” for a RIF. The District Court, however, found fault with the County
Superintendent’s “good cause” determination by reasoning that the RIF violated § 20-4-
203, MCA (1993). This was incorrect. While § 20-4-203, MCA (1993), concerns tenure
and how it is earned, it says nothing about what constitutes “good cause.”
¶22 The County Superintendent’s Conclusion of Law Number 7, which determined
that the financial circumstances facing the Board of Trustees constituted “good cause” for
a RIF, was correct. See Sorlie, 205 Mont. at 28, 667 P.2d at 403. As such, the District
Court’s reversal of Conclusion of Law Number 7 was error.
Was Radakovich’s RIF in contravention of § 20-4-203, MCA (1993)?
¶23 The County Superintendent concluded that “Mr. Radakovich’s RIF was not
undertaken in violation of any ‘bumping’ right he may have had under § 20-4-203, MCA
(1993), or Massey and Holmes.” The County Superintendent reasoned that (1) the
9
District had the right to reduce its staff as a result of the decrease in funding, (2) it had the
right to restructure the District in such a way as to eliminate the full-time social studies
position at Scobey High School, while creating positions utilizing multiple-subject
teaching responsibilities, and therefore (3) it had the right to RIF Radakovich, a teacher
with certification in only one subject.
¶24 The District Court disagreed, determining that the RIF was “contrary to Section
20-4-203, MCA,” because (1) the use of “multiple endorsements” as a criterion during
the District restructuring undermined tenure, and (2) the RIF violated the CBA’s
provisions governing teacher-district disputes and contracts. We turn to these
conclusions.
¶25 Section 20-4-203, MCA (1993), reads as follows:
20-4-203. Teacher Tenure. (1) Except as provided in 20-4-208,
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 is considered to be reelected 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 the teacher unless the trustees resolve by majority vote of
their membership to terminate the services of the teacher in accordance
with the provisions of 20-4-204.
Although this section describes how the tenure right is attained and operates, it says
nothing about the corresponding “bumping” right referred to by both the County
Superintendent and the District Court. We have held that “bumping rights” protect a
tenured teacher from termination in RIF situations by allowing a tenured teacher to
unseat a non-tenured teacher in a position for which the tenured teacher is also qualified.
10
See Harris v. Bailey (1990), 244 Mont. 279, 283, 798 P.2d 96, 99 (“a tenured teacher
who is discharged as part of a reduction of force has ‘bumping rights,’ under certain
conditions, over nontenured teachers.”); Holmes v. Madison & Jefferson Counties (1990),
243 Mont 263, 267, 792 P.2d 10, 13 ( “we hold that when the school board eliminated
Mr. Holmes’ position, § 20-4-203, MCA, obligated it to offer Holmes a comparable
teaching position held by a non-tenured teacher.”); see also Massey, 211 Mont. 331, 683
P.2d 1332. Further, neither party here disputes that the bumping right also allows a
senior tenured teacher to unseat a junior tenured teacher.
¶26 Taking exception to the order of the District Court, the District argues that it
properly RIFed Radakovich under § 20-4-203, MCA (1993), because Radakovich was
not qualified to undertake any of the positions, with the accompanying multi-certification
requirements, which were filled by junior-tenured or non-tenured teachers after the
restructuring. Radakovich, on the other hand, argues that the District’s restructuring
itself, and not necessarily the post-restructuring decision to terminate him as not certified
to teach the available positions, violated his tenure protections. He argues that
restructuring in such a way which considers the number of endorsements possessed by
teachers, and which therefore allows the retention of non-tenured and junior-tenured
teachers over more senior tenured teachers, contravenes § 20-4-203, MCA (1993), as
well as this Court’s decisions in Massey, Holmes, and Harris. 1 The District Court
1
The effect of restructuring in this case was to eliminate the full-time, single-
certification social studies position at Scobey High School in favor of teaching positions
which required multiple-subject certification. Thus, after restructuring, a health teacher,
11
appears to have agreed with Radakovich, though in a manner clouded with discussion on
the merits of the CBA. However, we must disagree with Radakovich’s argument.
¶27 First, Radakovich asserts that Massey, Holmes, and Harris require a school
district, when faced with economic restructuring and impending RIFs, to absolutely
protect tenure and seniority rights during the restructuring process. In other words, a
school district can restructure only in ways that would ensure the employment of tenured
teachers, beginning by protecting the most senior tenured teacher, down to the most
junior tenured teacher, before restructuring options which utilized nontenured teachers
could be implemented. Our cases, however, do not stand for such a broadly sweeping
interpretation of the tenure right.
¶28 In Massey, a school district dismissed a tenured teacher holding endorsements in
three subjects, including P.E., in favor of non-tenured P.E. teachers who had majored in
physical education in college. The Board justified the tenured teacher’s dismissal by
citing its policy to only hire teachers to teach in subjects in which they majored in
college. We, however, disagreed, and held that the state tenure laws, including § 20-4-
203, MCA, protected the dismissed teacher under the circumstances, since the dismissed
tenured teacher was otherwise certified to teach a position held by a non-tenured teacher
after the RIF. Massey, 211 Mont. at 337, 683 P.2d at 1335. An internal board policy in
math teacher, and physical education teacher at Scobey High were each asked to teach
social studies classes in addition to their regular subjects. Each of the teachers who took
on social studies classes was certified and endorsed to teach social studies as well as their
other assigned teaching subject. Radakovich, on the other hand, was certified only in
social studies, and was therefore not qualified to fill any of the post-restructure positions.
12
favor of a physical education major could not, after all, circumvent state tenure
protections.
¶29 In Holmes, a school board RIFed a principal qualified to teach in areas taught by
non-tenured faculty because the principal did not posses actual paper certification from
the state. While the principal obtained that certification days later, the school board
continued the termination proceedings. It being undisputed that the principal was at all
times qualified to teach the positions taught by non-tenured faculty, we held that Ҥ 20-4-
203, MCA obligated [the board] to offer Holmes a comparable teaching position held by
a nontenured teacher,” noting that “the issuance of the certificate showing Holmes’
endorsements only memorialized the qualifications that Holmes was known to possess”
and that Holmes had nonetheless timely met the certification requirement. Holmes, 243
Mont. at 267, 792 P.2d at 13.
¶30 Finally, in Harris, a school board voted to eliminate a full-time physical education
position, and dismissed the tenured teacher who had formerly held the position. Harris,
241 Mont. at 276, 786 P.2d at 1165. However, the school board then created a half-time
P.E. position, which it, in turn, offered to a different teacher. We concluded the school
board’s actions were improper, holding that “to interpret the Board’s action as
eliminating an old position and creating a new position involves a hypertechnical
distinction that could seriously threaten the value of tenure,” Harris, 241 Mont. at 281,
786 P.2d at 1168, and affirmed an administrative decision requiring the school board to
offer the teacher the half-time physical education position.
13
¶31 The key factor of the holdings in Massey, Holmes, and Harris is that the tenured
teacher was qualified to teach the available position, but, in each case, the district gave
the position to another, thereby violating the qualified teacher’s tenure rights. These
cases thus instruct that a tenured teacher must be retained over a non-tenured teacher
when a position is open for which both teachers are qualified. If a board fails to do so, it
violates § 20-4-203, MCA. Importantly, however, none of these cases addressed the
application of tenure upon a district’s decision to create or eliminate teaching positions in
the first place—i.e., to restructure a district. 2 Indeed, neither has the Legislature
addressed the role of tenure within this obviously difficult context.
¶32 It cannot be denied that a school board has the authority, and arguably the duty, to
manage its school district in a financially responsible manner. See Sorlie, 205 Mont. at
29, 667 P.2d at 403. This authority includes the power to eliminate programs, activities,
and personnel if and when such changes are necessary. Sorlie, 205 Mont. at 29, 667 P.2d
at 403; Massey, 211 Mont. at 336, 683 P.2d at 1334. Therefore, while senior tenured
teachers possess a “bumping right” for a position vis-à-vis junior tenured and non-tenured
teachers, it does not follow therefrom that the right constrains a board, during a
restructuring, to revise academic programs or re-align staff positions only in a manner
2
While Harris did involve a change in one position—i.e., cutting a full-time
physical education position to part-time—it did not involve the general restructuring at
issue here, where new positions requiring multi-subject endorsements were created to
absorb a reduction in force required by budget constraints.
14
which accommodates the seniority of existing tenured staff. 3 Not only is there no
authority for so applying tenure, such an application would substantially interfere with a
district’s undisputed right, and one of its most difficult duties, to restructure—i.e., to
eliminate programs, activities, and personnel when financial circumstances dictate. See
Sorlie, 205 Mont. at 29, 667 P.2d at 403; Massey, 211 Mont. at 336, 683 P.2d at 1134.
Furthermore, it is clear that a teacher has no right to teach a position for which he or she
is unqualified. Section 20-4-201, MCA (1993).
¶33 Radakovich asserts, however, that because there were alternative restructuring
options which would have resulted in dismissal of a non-tenured teacher instead of him,
the District was bound to utilize such an alternative. The Scobey School District elected
to address the financial shortfall, in part, by cutting multiple full time teachers. Included
among those cuts was Radakovich’s full-time social studies position at the high school,
for which the District assigned three teachers endorsed in multiple subjects, including a
junior tenured and non-tenured teacher, to teach his courses, in addition to teaching their
other courses.
3
This can be more clearly illustrated by a different scenario. Imagine a school
which employs ten teachers, each of whom is certified to teach only one subject, and no
two teachers are certified in the same subject. If budget constraints force the district to
cut one teacher yet retain the core curricula, the district will be forced to dismiss two
tenured teachers and hire one new, non-tenured teacher certified in multiple subjects.
Though the outcome would result in the retention of a non-tenured teacher over two
tenured teachers, the district would have no other choice but to dismiss the tenured
teachers. This is not the scenario here, as discussed infra, but is offered only to illustrate
that Radakovich’s tenure argument could logically lead to an impossibility.
15
¶34 Radakovich correctly notes that this action was not the only high school level cut
that the District considered. There were other alternatives under which Radakovich could
have been retained as a full-time, single subject-endorsed social studies teacher.
However, as would be expected, there were negative consequences associated with each
of those alternatives. One of the alternative staffing cuts considered by the District
required the high school principal to undertake teaching duties in addition to his
administrative duties, essentially reducing the full-time principal position to one deemed
to be part-time. Another alternative would have required termination or reduction of
foreign language classes.
¶35 Clearly, the other alternatives considered by the Board would have negatively
impacted either the administrative operation of the school or the educational program
which the school could offer, impacts which the Board was able to avoid by using
teachers certified in multiple subjects. This well illustrates, not only the difficult choices
faced by the Board, but the restrictions which would be forced upon districts if they were
required to restructure exclusively on the basis of preserving senior tenure staff positions.
The statutes and our cases simply do not mandate such an application of tenure, and to
require such would contravene Sorlie, 205 Mont. at 29, 667 P.2d at 403, which
recognized a district’s authority to eliminate programs, activities, and personnel if and
when such change is necessary. 4
4
It is worth noting that other states have significantly more detailed statutory
schemes governing tenure. Those provisions detail not only how tenure is earned, as in
Montana, but how a district must respect tenure after it is earned as well. See e.g.,
16
¶36 We note that other states allow retention of junior tenured and non-tenured
teachers over senior tenured teachers in some situations. For instance, in New Mexico
State Bd. of Educ. v. Abeyta (N.M. 1988), 751 P.2d 685, the New Mexico Supreme Court
held that a district did not have to restructure or realign a district’s teachers so as to
ensure retention of the most senior teachers where doing so would seriously affect
educational programs. Abeyta, 751 P.2d at 688. As noted by the court, there were
serious consequences to elevating tenure above all other considerations during a
reduction in force, a fact made evident by testimony from the superintendent in that case:
We had a situation in the library [where] we have finally acquired the
services of [Carson] an individual [who] is extremely energetic, has done
an excellent job in our library over the two years that he has been there.
That was one of the programs that was suffering drastically. We wanted to
preserve that program and the only way we felt we could is by keeping that
individual, in there. We considered the option that you’re talking about
which would have been to move John Sampson into that program.
He was in that program four or five years ago at the middle school level
[where] there is a lot of difference between programming library for middle
school as opposed to high school. That consideration was given and we felt
that we made a professional judgment that that would deteriorate the
program.
The other consideration was that John Sampson is in our social studies
program at the high school. We consider him an exceptionally good social
studies person. He has no interest in going into the library. We would
have, in essence, ended up disturbing two extremely important programs if
we took this approach. That is why we discounted that as an alternative.
California, Cal. Ed. Code §§ 44955 (Reduction in number of permanent and probationary
employees) and 44956 (Rights of permanent employee terminated due to reduction in
employees). Montana statutes do not offer this kind of direction.
17
Abetya, 751 P.2d at 687-88. As a result of the consequences detailed by the
superintendent, the court upheld the district’s action retaining a junior teacher over a
senior tenured teacher. 5
¶37 Finally, as mentioned above, the District terminated Radakovich in part because
he possessed only a single teaching endorsement, while the other teachers considered for
dismissal but retained possessed endorsements in multiple subjects. The District was
able to maintain a full-time principal and preserve a stronger foreign language curriculum
by utilizing staff members who possessed multiple endorsements. As a matter of
practical policy, this case illustrates that a teacher with multiple endorsements is
especially valuable to a small rural district which needs teachers to teach in many
subjects and to differing age groups. In 1982, when deciding a case much like the one
before us, the State Superintendent of Schools held similarly, and offered a prescient
opinion about the need for teachers to be certified in multiple subjects:
My commitment to give strong support to the concept of tenure remains.
However, in this instance, Appellant is attempting to remain in a School
District which has suffered a consistent drop in students for a number of
years; at the same time the Appellant had not broadened his teaching
certification to meet the obvious demand for teachers who have
certification in many subjects. No question was ever raised on Appellant’s
ability to teach or his intelligence. Appellant must consider that if he
intends to teach in rural areas, where enrollments are declining, he must
broaden his teaching certification in order to be a more useful and valuable
5
California allows retention of junior tenured teachers over senior tenured
teachers if the junior teachers possess special skills and competence, even where both
teachers are similarly state certified. See King v. Berkeley Unified School District (Cal.
1979), 152 Cal. Rptr. 782; Moreland Teachers Association v. Kurze (Cal. 1980), 167 Cal.
Rptr. 343, 346-47.
18
employee in a situation where students, teachers and school budgets are
under constant pressure.
Holter v. Valley County School District No. 13 (OSPI No. 29-82) (1982), 1 Ed. Law 283.
It is clear that the unfortunate, but real need for small districts to respond to declining
enrollments will require greater use of teachers with multiple endorsements in order to
meet the challenge of providing a complete educational program. While, in accordance
with our holdings, a district cannot displace a tenured teacher from a position for which
that teacher is qualified in order to hire a multi-certified non-tenured teacher for that
position, it is inevitable, as noted by the State Superintendent of Schools, that the
financial challenges faced by districts in depopulating areas of the state will force them to
restructure academic programs in a manner which places greater reliance upon multi-
certified teachers. Our decision today is not directed by these practical observations, but
we mention them only to demonstrate that, as currently enacted, the tenure statutes do not
prohibit such restructuring.
¶38 The Scobey School District dismissed Radakovich because (1) the District
restructured in a way that avoided negatively impacting the high school’s administrative
operation and educational program, and (2) Radakovich was endorsed in only one subject
area, leaving him unqualified to teach any of the post-restructuring positions filled by the
non-tenured and junior tenured teachers. Because nothing in § 20-4-203, MCA (1993),
or the Massey, Holmes, and Harris line of cases precludes such considerations and action,
we hold that the Scobey School District’s dismissal of Radakovich as a tenured teacher
19
was not in violation of § 20-4-203, MCA (1993), and the tenure protections otherwise
outlined in Montana case law.
¶39 It is important to make one final observation about tenure. While not implicated
by the facts of this case, clearly a school board cannot, in order to avoid the provisions of
the tenure statutes, use restructuring as a ruse to dismiss a specifically targeted employee
or employees in bad faith. This was the essence of our holding in Harris, where we
rejected the district’s restructuring defense as a “hypertechnical distinction” of the
district’s right to restructure. Harris, 241 Mont. at 281, 786 P.2d at 1168. In contrast, the
Scobey District’s action here was not “hypertechnical,” but a legitimate restructuring.
Thus, it remains the law today that, “[a] teacher’s tenure is a substantial, valuable and
beneficial right, which cannot be taken away except for good cause.” Massey, 211 Mont.
at 336, 683 P.2d at 1334, citing State v. District Court, Fergus County (1954), 128 Mont.
353, 361, 275 P.2d 209, 214. It is self-evident that bad faith cannot constitute good
cause.
Was the District’s use of the multiple endorsements RIF criterion
objective and fairly applied?
¶40 The County Superintendent found the District’s use of the “multiple
endorsements” RIF criterion to be objective and fairly applied by the Scobey School
Board. Although the District Court disagreed, after review, we conclude the County
Superintendent was correct.
20
¶41 The District Court concluded that use of the “multiple endorsements” RIF
criterion was improper based on its reading of the relevant collective bargaining
agreement:
While [the multiple endorsements criterion] may have presented more
flexibility in shuffling staff, it was an element that was not part of the
Collective Bargaining Agreement and a factor that was not identified to the
teachers until less than one week before Radakovich’s notification that the
superintendent was recommending that he be terminated.
The District Court added:
While the County Superintendent correctly found that Superintendent Hill
determined staffing reductions were to be implemented based on seniority
and evaluations, “where possible”, endorsements and the programs offered
by the district and a preference for multiple endorsements and the
subsequent conclusion that those were proper and legitimate criteria is
erroneous. According to its own Collective Bargaining Agreement,
seniority and evaluations alone were the criteria . . . . The words “multiple
endorsements” were unilaterally inserted by the superintendent.
While the District Court may have correctly determined that the RIF criteria used by the
District was not properly grounded in the collective bargaining agreement, that issue was
finally decided via binding arbitration in December of 1994. There, the arbitrator denied
Radakovich’s grievance, concluding that the District had not violated the CBA when it
terminated Radakovich using the multiple endorsements criterion. Radakovich I, ¶ 9.
¶42 As we held in Radakovich I, “[a] district court’s review of arbitration decisions is
circumscribed by statute.” Radakovich I, ¶ 17. Therefore, based upon the issue’s final
resolution in binding arbitration, we must conclude that the District Court’s justification
of its reversal of the County Superintendent’s decision on the basis of the District’s use of
the “multiple endorsements” criterion was improper.
21
¶43 Further, it is clear that a “multiple endorsements” criterion is objective: a teacher
either has them or does not have them. Here, that criterion was utilized fairly by the
District, as every teacher retained to teach Radakovich’s classes and cover his area of
certification possessed multiple endorsements. For these reasons, as well as those above,
we conclude that the use of the “multiple endorsements” criterion was objective and
fairly applied.
¶44 The District Court’s reversal of the decision of the Daniels County Superintendent
of Schools was in error. We reverse and remand with instructions to reinstate the
decision of the County Superintendent.
/S/ JIM RICE
We concur:
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS
22
Justice James C. Nelson dissenting.
¶45 It concerns me that, while well intended, our decision creates a loophole in the
teacher tenure act that will, henceforth, enable school boards to terminate tenured
teachers in favor of less qualified and lower paid non-tenured teachers under the guise of
using RIFs coupled with multiple endorsement criterion.
¶46 It is undisputed that the Scobey School District (the District) did not eliminate its
social studies program and, thus, Radakovich’s position. The social studies program
continued on after Radakovich’s termination—it was just taught, along with other
courses, by other teachers, one of those being a non-tenured teacher (Tim Tharp).
According to the findings of fact of the County Superintendent, the District could have
terminated Tharp, assigned his duties to another teacher, and kept Radakovich in its
employment. But that did not happen; rather, Radakovich was terminated.
¶47 In that regard, § 20-4-203, MCA, protects the tenure rights of teachers such as
Radakovich, who have been offered and who have accepted a contract for the fourth
consecutive year of employment. Tenure is a unique facet of teaching contracts designed
to encourage academic freedom and to stimulate a vigorous, and sometimes
controversial, discussion and debate in the pursuit of knowledge through continuing
employment and economic security.
¶48 The multiple endorsement criterion constructed by the District, and now endorsed
by this Court, is neither included in § 20-4-203, MCA, as a basis for terminating a
23
tenured teacher, nor was it a part of the collective bargaining agreement. Rather, this
criterion was constructed from whole cloth by the District without input from the
teachers. Instead of being an “objective” standard, the multiple endorsement criterion is
little more than a facile, artificial gimmick that enables school districts to target specific
tenured teachers for termination under the guise of a RIF, and which allows the district to
retain less qualified and lower paid non-tenured teachers. See Harris v. Cascade County
School Dist. 6 (1990), 241 Mont. 274, 786 P.2d 1164, where we rejected the school
board’s decision to first eliminate a full-time P.E. position and, as a consequence,
terminate the tenured teacher holding it, and then turn around and create a new half-time
P.E. position for which the tenured teacher would be entitled to no consideration. We
condemned this approach as “artificial” and involving a “hypertechnical distinction that
could seriously threaten the value of tenure” and would “permit school boards to
circumvent tenured rights . . . .” Harris, 241 Mont. at 281, 786 P.2d at 1168. The same
conclusion appertains here.
¶49 I agree with Radakovich’s argument, if § 20-4-203, MCA, means anything, it
must mean that a tenured teacher has the right to require the school district to structure its
RIFs, where possible, to retain tenured teachers and to RIF non-tenured teachers. This
alternative was undisputedly available to the District here, and there is nothing in the
County Superintendent’s decision which explained why the District did not pursue this
alternative.
24
¶50 Radakovich was tenured under § 20-4-203, MCA, and the collective bargaining
agreement covering his employment provided that RIFs would be based on “seniority
and/or personnel evaluations by the administrative staff.” The County Superintendent
found that there were alternatives of RIF which could have allowed teachers to continue
to teach in their endorsed areas, retain Radakovich and terminate a non-tenured teacher.
Section 20-4-203, MCA, and the collective bargaining agreement provide a preference
for the retention of tenured teachers. Indeed, our case law confirms that tenured teachers
have the right to “bump” non-tenured teachers. Massey v. Argenbright (1984), 211 Mont.
331, 337, 683 P.2d 1332, 1335 (school board’s policy of hiring only those teachers who
have majored in the subject does not supersede the Teacher Tenure Act and holding that
the school board was obligated to offer Massey one of the comparable teaching positions
held by a non-tenured teacher).
¶51 I would conclude that, here, the School Board refused to follow the law and the
collective bargaining agreement. Unfortunately, our decision creates a loophole in the
Teacher Tenure Act that will, henceforth, enable school boards to terminate tenured
teachers in favor of less qualified and lower paid non-tenured teachers under the guise of
RIFs coupled with multiple endorsement criterion. If these sorts of criterion are to
hereafter be a part of the alternatives available to school districts conducting a RIF, then
multiple endorsement criterion should be either included in the Teacher Tenure Act by
the Legislature or bargained for as part of the collective bargaining process.
25
¶52 This Court has consistently held that teacher tenure is a valuable and substantial
right that cannot be taken away except for good cause. Yanzick v. School District No. 23
(1982), 196 Mont. 375, 391, 641 P.2d 431, 440 (citing State ex rel. Saxtorph v. District
Court, Fergus County (1954), 128 Mont. 353, 361, 275 P.2d 209, 214). See also
Trustees, Missoula Cty S.D. 1 v. Anderson (1988), 232 Mont. 501, 505, 757 P.2d 1315,
1318; Baldridge v. Board of Trustees (1997), 287 Mont. 53, 58, 951 P.2d 1343, 1346.
¶53 I fear that we have now substantially diminished that right and have opened a door
for abuse.
¶54 I would affirm the trial court. I dissent from our failure to do so.
/S/ JAMES C. NELSON
26
Scobey School District v. Radakovich
Court: Montana Supreme Court
Date filed: 2006-04-25
Citations: 2006 MT 83, 332 Mont. 9, 135 P.3d 778, 2006 Mont. LEXIS 144, 179 L.R.R.M. (BNA) 2863
Copy CitationsCombined Opinion