(dissenting).
I respectfully dissent. I do so because both the facts and the law raise issues that compel decision in favor of the school district. The majority appears to rest its decision on Minn.Stat. § 125.12, subd. 6b(g) (1990), which reads:
(g) A teacher placed on unrequested leave of absence may engage in teaching or any other occupation during the period of this leave;
While it is agreed that no collective bargaining contract is involved here, the decision cannot begin and end with recitation of the quoted statutory provision.
Mohn was a junior high school principal on unrequested leave. See Mohn v. Independent School Dist. No. 697, 416 N.W.2d 494 (Minn.App.1987). The Eveleth and Gilbert school districts had entered into an agreement under the Interdistrict Cooperation Act. See Minn.Stat. § 122.541 (1990). Mohn had been “bumped” from his position as junior high school principal at Gilbert where he had been assigned under the in-terdistrict arrangement. However, he still retained his right to a full-time teaching position in grades 7 through 12. Seniority allowed Gilbert to “bump” a less-senior teacher in a field for which he was licensed.
After teaching one year, Mohn sent the Eveleth school district the following letter:
I hereby tender my resignation from my teaching position with Independent School District No. 697.
I reserve my reinstatement rights to an administrative and/or principal position in Independent School District No. 697.
The legal effect of this letter is the heart of the issue on appeal. Mohn unilaterally decided to no longer teach under the Eveleth-Gilbert arrangement but instead “resigned” his position as a teacher and took a position as a principal in Chisholm. Chisholm was not part of the interdistrict arrangement between Eveleth and Gilbert. Mohn argues he is entitled to reinstatement in Eveleth-Gilbert as a principal (a position that opened after his resignation as a teacher and after he entered into a new contract with Chisholm).
*729Under the theory advanced by the majority, Mohn could work outside the school district and still retain his seniority in the Eveleth-Gilbert school district. See Minn. Stat. § 125.12, subd. 6b(g). I respectfully disagree. It is my view that when Mohn resigned as a teacher (and a school principal is included in the definition of the word “teacher” contained in Minn.Stat. § 125.03 (1990)), he gave up his seniority in Eveleth-Gilbert and could not partially retain his right to reinstatement as a principal. He could not divide his resignation.
Under the provisions of Minn.Stat. § 125.60, subds. 6a and 6b adopted in 1979, Eveleth-Gilbert was not obligated to reinstate Mohn on its seniority list. It reads:
Subd. 6a. No school board shall be obligated to reinstate a teacher who takes a full-time or part-time position as a teacher in another Minnesota school district while on an extended leave of absence pursuant to this section. This subdivision shall not apply to a teacher who is employed as a substitute teacher.
Subd. 6b. A school board shall not be obligated to reinstate a superintendent on an extended leave of absence pursuant to this section to a position in the district.
Minn.Stat. § 125.60, subds. 6a and 6b (1990). Mohn was not hired as a substitute principal in Chisholm and there is no claim here that he was. His position in Chisholm was full time. His rights as a teacher with tenure and seniority had been honored and Eveleth-Gilbert provided a teaching opportunity once he was bumped as a principal.
I reiterate that Minn.Stat. § 125.12, subd. 6b(g) would not control decision here. Minn.Stat. § 125.12, subd. 6b(g) and Minn. Stat. § 125.60, subds. 6a and 6b are not in conflict. The two can be harmonized. It seems to me that under Minn.Stat. § 125.-12, subd. 6b(g) a teacher on unrequested leave has a duty to mitigate damages. See Stevens v. Independent School Dist. No. 271, 296 Minn. 413, 415, 208 N.W.2d 866, 868 (1973). However, I do not read Minn. Stat. § 125.12, subd. 6b(g) as saying that after the Eveleth-Gilbert school district bumped Mohn as principal and provided him with a full-time teaching position in the cooperating district, he could unilaterally resign, take a full-time position in a separate and distinct school district without any acquiescence from Eveleth-Gilbert, and still expect to be reinstated as a principal later on by Eveleth-Gilbert.
Undoubtedly, if no employment was available in the school district where he was bumped as principal, he could seek employment elsewhere to mitigate damages while on unrequested leave. However, this was not such a case. Mohn’s situation was probably not far different from the situation in State ex rel. Dreyer v. Board of Educ. of Indep. School Dist. No. 542, 344 N.W.2d 411 (Minn.1984), where an elementary principal was placed on unrequested leave. There, the supreme court held:
Although technically an unrequested leave of absence proceeding, Dreyer was not actually leaving employment because, fortuitously, at the time of his placement on unrequested leave, a full-time elementary teacher vacancy occurred.
Id. at 413. Dreyer did not involve “bumping” or “realignment” of other teachers.
Here, Mohn’s teaching position in grades 7-12 was not affected by his being bumped from his position as a principal. See Mohn, 416 N.W.2d at 497. He could be bumped and still retain full-time teaching rights in Eveleth-Gilbert by bumping a less senior teacher. Thus, he had no reason to go to Chisholm to mitigate damages. He voluntarily gave up his tenured rights under Minn.Stat. § 125.12 to establish new rights in a separate district.
The new relationship created by Mohn in the Chisholm school district should place no mandatory requirement on the Eveleth-Gil-bert school district to rehire Mohn. To reiterate, the school district should be able to rely on Minn.Stat. § 125.60, subds. 6a and 6b in refusing to rehire Mohn.
It is established law in Minnesota that rights guaranteed by the teacher tenure statute may be waived. See Jerviss v. Independent School Dist. No. 294, 273 N.W.2d 638, 645 (Minn.1978); State ex rel. *730Johnson v. Independent School Dist. No. 810, 260 Minn. 237, 246, 109 N.W.2d 596, 602 (1961). I respectfully submit that is what Mohn did here, and he should be estopped from claiming reinstatement.
To grant Mohn the right to forego a full-tenured teaching position in Eveleth-Gil-bert (where he retained his seniority for return to a principal position) and unilaterally enter into a new contractual relationship in Chisholm, gives greater protection to Mohn than what the statute contemplates. Mohn cannot have it both ways. No act of the Eveleth-Gilbert school district made it necessary for Mohn to seek employment in any other district. By resigning his teacher rights in Eveleth-Gilbert and accepting and performing full-time employment in Chisholm, Mohn has abandoned his tenured rights in Eveleth-Gilbert. See Annotation, Termination of Teacher’s Tenure Status by Resignation, 9 A.L.R.4th 729, 746, 749 (1981) (cases therein cited supportive of the views expressed in this dissent).
Finally, I contend that Mohn’s October 10, 1990 petition for writ of certiorari concerning the failure of the Eveleth-Gilbert school district to reinstate him to the position of principal is untimely. The school district initially decided to accept Mohn’s resignation without reserving his reinstatement rights on August 9, 1988. It first refused to reinstate Mohn in 1989, when a principal position opened.
In August 1989, Mohn commenced a declaratory judgment action against the school district. The trial court dismissed Mohn’s complaint for lack of jurisdiction following the supreme court decision in Harms v. Independent School Dist. No. 300, 450 N.W.2d 571 (Minn.1990). Mohn appealed but voluntarily dismissed his appeal based on the holding by the supreme court that appellate review of school matters must be by writ of certiorari. See Dokmo v. Independent School Dist. No. 11, 459 N.W.2d 671 (Minn.1990). In August 1990, Eveleth-Gilbert hired a junior high school principal in Gilbert. Mohn seeks review of that action.
It is my view that Mohn should have sought review of the school district’s action in 1988 when it accepted his resignation as a teacher but refused to reserve reinstatement rights as a principal. Having failed to do so, his present suit is untimely. The writ of certiorari should be quashed and the action of the Eveleth-Gilbert school district affirmed.