concurring specially.
I concur in the result reached in the majority opinion.
I write separately to observe that the “issue of material fact” which the majority concludes does not exist has reference to the record made before the school board. There is no doubt there is disagreement as to the underlying facts and whether or not those facts entitled the school board to not renew the contracts. The teachers were not prevented from submitting any pertinent evidence to the school board. The board is to determine which evidence it will believe and I agree that whether or not the board abused its discretion in acting on those facts is a legal question for the court. The summary judgment in these cases applies somewhat differently than it does in the ordinary legal action wherein the un*709derlying facts are at issue. In those instances summary judgment is improper. Here, those underlying facts, although in dispute, have already been considered by the school board and the only issue of material fact for the court to consider relates to the record made before the school board. Nevertheless, I am uncomfortable applying the ordinary summary judgment holdings to the issue of the completeness of the record as opposed to the underlying facts.
In many instances there is little or no record made of the proceedings before the school board because the board is not required to keep a verbatim record of the proceedings in nonrenewal such as it must with regard to a discharge. See § 15-47-38, NDCC. However, where a record is kept and relied upon for purposes of summary judgment, i.e., that there is no question of fact as to the proceedings before the board and the only issue remaining is an issue of law, it appears to me that the moving party ought to present a total record. Although the majority concludes that it was the teachers’ responsibility to submit evidence showing the record did not accurately reflect what transpired at the nonrenewal hearings, that should only apply where a substantial portion of the record is submitted with the summary judgment motion. In this instance I believe that was done. In those instances in which the only “record” is the minutes of the meeting or a summary prepared by the board clerk, I would not reach such a conclusion.
With the advent of portable recording devices I expect motions for summary judgment will be a common policy in these proceedings. Although today we affirm a procedure whereby that policy is approved, we ought to caution school boards and teachers that a substantial record will be required to sustain a motion for summary judgment if the content of the record is attacked. I would not place all the responsibility on the respondent, be it the teacher or the school board, in every circumstance.
Finally, as to the merits involving Dick and Kruger, it appears some of the concerns arose as a result of a change in the administrator of the school, i.e., the previous administrator approved the “team” teaching concept whereas the new administrator, Mr. Bear King, did not. Although I might question whether or not this would be cause for nonrenewal of the teaching contracts, at least without notice, it appears from the record before us that Mr. Bear King did note certain problems in his evaluations but apparently the teachers continued their approach notwithstanding those evaluations. Had the teachers not been given an opportunity to adjust their teaching approach, I would be hesitant to affirm, for our statute requires evaluations as a basis for nonrenewal. See § 15-47-38(5), NDCC. [“The reasons given by the school board for its decision not to renew a teacher’s contract must be drawn from specific and documented findings arising from formal reviews conducted by the board with respect to the teacher's overall performance. Each district shall have an established system through which written evaluations are prepared for every teacher employed by the district....”] The obvious reason for this requirement is to give notice to a teacher of the deficiencies in performance as found by the administration and an opportunity for the teacher to correct those deficiencies. In those instances in which a previous administration has approved teaching methods, a subsequent administration that disapproves such methods should be particularly careful to assure that the teacher has been given notice of the disapproval and the opportunity to adjust teaching methods. At that stage, at least, this does not appear to be a matter of ineptness; rather it appears to be a difference in philosophy of teaching. Only when the teacher refuses to adjust can it be labeled incompetence.
LEVINE, J., concurs.