Fercho v. Montpelier Public School District No. 14

VANDE WALLE, Justice,

concurring specially.

I agree with the majority opinion that the school board did not act arbitrarily, unreasonably, or unconscionably in determining to reduce faculty and combine teaching responsibilities for reasons of financial difficulty. However, I am uncomfortable with that portion of the opinion which concludes that the school board did not act arbitrarily, unreasonably, or unconscionably in failing to offer the part-time position to Fercho. When the reduction-in-force policy adopted by the school board is considered with the fact that Fercho had seniority and was qualified for the part-time position it appears to me that the school board, if it really desired to give maximum consideration to basic fairness and decency relating to the teacher’s position and career, might well have affirmatively offered the part-time position to Fer-cho. A failure by the school board to do so arouses a suspicion that the school board had other reasons for not renewing the contract.

However, the provision in the reduction-in-force policy provides that teachers who have lost their positions because of the policy “may request” and be given consideration for reemployment if a vacancy for which they are qualified should occur. That provision, when considered with the fact that Fercho insisted then and continued to insist at oral argument that she was entitled to a full-time position, not a part-time position, causes me to reluctantly agree that the school board was not obligated to offer her the part-time position for which she was qualified. If it were not for Fercho’s insistence on a full-time position I would favor reversing the district court and remanding the case with instructions that Fercho be awarded damages based upon the part-time rather than the full-time position. Despite my concurrence with the majority opinion in this instance I believe that in the *343future 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.