concurring.
I agree with the opinion written for the Court by Justice Meschke. I write separately to express my uneasiness about the opening which subsequently arose and for which the school board determined Kent was not qualified because it was coupled with a coaching position. That issue was pled and argued as an issue of sex discrimination. But, it may reflect on the good faith of the school board in the first instance in selecting Kent as the teacher whose contract would not be renewed because of budget deficits and declining enrollments. That is particularly true here in that the coaching position that was open was the varsity coach for boys basketball. As it turned out, the assistant varsity coach assumed that position and other arrangements were made to shift coaching duties among the faculty, although the person hired for the open position was qualified to coach and did act as assistant coach. Nevertheless, the record does not reflect that any significant attempts to shuffle the coaching positions was made before advertising for the vacancy.
In a concurring opinion in Fercho v. Montpelier Pub. Sch. Dist. No. 14, 312 N.W.2d 337 (N.D.1981), I expressed my concern in these words:
“I believe that in the future school boards which do not renew a teacher’s contract because of financial distress but create other full-time or part-time positions for which a nonrenewed teacher is qualified should ‘go the last mile’ and affirmatively offer the nonrenewed teacher the newly created position. Such affirmative action on the part of the school board will be persuasive, at least to me, in instances in which it is alleged that the school board did not act with fairness and decency or that the school board had ulterior motives in not renewing the teacher’s contract.” Fercho, supra, at 342 (VandeWalle, J., concurring specially) see also Quarles v. McKenzie Public School Dist. No. 34, 325 N.W.2d 662 (N.D.1982).
The same rationale is applicable to vacancies for which the teacher is qualified. I do not intend to second-guess the fact finder on an issue which was not the focus of the trial. Nevertheless, it appears to me that there was little, if any effort, to arrange the coaching duties so that Kent could have had an opportunity to apply for the vacant position for which she was otherwise qualified. That should be a primary concern of all school boards when releasing veteran teachers because of declining enrollments and budget deficits. Anything less opens the school board’s determination to nonre-new a veteran, and presumably more highly paid, teacher to allegations of ulterior motives.
JOHNSON, J., concurs.