No. 8 6 - 3 4 6
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
SHARON BOOTH,
Petitioner and Appellant,
-vs-
ED ARGENBRIGHT, STATE SUPERINTENDENT
OF PUBLIC INSTRUCTION; MISSOULA SCHOOL
DISTRICT NO. 1, MIKE BOWMAN, MISSOULA
COUNTY SUPERINTENDENT OF SCHOOLS,
Respondents and Respondents.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Thomas Honzel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ian Christopherson, Missoula, Montana
For Respondent :
Richard Bartos, Office of Public Instruction, Helena,
Montana
Hilley & Loring, Great Falls, Montana
Michael W. Sehestedt, Deputy County Attorney, Missoula,
Montana
Submitted on Briefs: Nov. 20, 1 9 8 6
Decided: February 4, 1987
Filed: FEB 4:- 1987
Mr. Justice William E. Hunt, Sr. , delivered the Opinion of
the Court.
This is an appeal by Sharon Booth of the order of the
District Court, First Judicial District, Lewis and Clark
County which affirmed the decision of the State
Superintendent of Public Instruction. We affirm the decision
of the District Court that the teacher's resignation was
effective and no rescission has taken place.
There is no statement of issues presented for review in
appellant's brief as required by Rule 23(a)(2),
M.R.App.Civ.P. We therefore adopt respondent's statement of
the issue.
Whether the District Court erred as a matter of law in
affirming the decisions of the County Superintendent of
Schools and State Superintendent of Public Instruction which
held that Booth's resignation was effective and terminated
her employment with the School District.
The facts in this action were essentially stipulated to
in the prehearing order before the County Superintendent. On
January 17, 1979, Sharon Booth was a tenured teacher under
contract to Missoula County School District No. 1. Booth was
charged in Missoula Municipal Court and, without counsel,
pled guilty to a misdemeanor theft charge. The plea was
later withdrawn and the case dismissed. On January 10, 1979,
following Booth's guilty plea and prior to its withdrawal,
the Board of Education of District No. 1 (the Board) in
closed session and based on the theft charge and guilty plea,
voted to authorize Superintendent of Schools Ben Hanson to
request Booth's immediate resignation and, if she refused, to
institute immediate dismissal procedures in accordance with
Montana statutes. Hanson was also authorized to grant Booth
30 days' additional pay. The Board's action was communicated
to Booth by Hanson's letter of January 17, 1979. The same
day, Booth signed a letter of immediate resignation typed for
her by her building principal. Booth was teaching on the day
her resignation was requested and received. Her letter was
transmitted to Hanson, who directed issuance to Booth of a
final pay warrant on January 19, 1979, and a warrant for 3C
days' severance pay on January 23, 1979. Booth, acting
through her attorney Anthony Keast, accepted, cashed and
deposited the proceeds of those checks in Keast's trust
account. Booth has not offered to refund the $1,502.24
severance pay; the Board has not requested its return.
On February 8 or 9, 1979, Booth, through counsel, made
written request to the Board that she be allowed to withdraw
her resignation. Her attorney was present at the Board's
February 13, 1979 meeting to attempt to withdraw her
resignation. The Board went into closed session to discuss
the matter and, on advice of the Deputy County Attorney for
Missoula County, declined to allow withdrawal of the
resignation.
On February 20, 1979, Booth appealed the Board's action
to the Missoula County Superintendent of Schools Mike Bowman,
who declined to hear the appeal, citing advice of the
Missoula County Attorney's office. Thereafter, a writ of:
mandate was issued by Judge Henson compelling the County
Superintendent to abide by the contested case procedures in 5
20-3-210, MCA.
Following Judge Henson's order, a hearing before the
County Superintendent of Schools was held on May 22, 1984.
Prior to the hearing, the parties submitted a prehearing
order which set forth an agreed statement of facts. The only
issue of fact left to be decided was whether or not school
officials had made certain sta-tementsregarding the effect of
Booth's acceptance of severance pay as asserted by Anthony
Keast during the Board's meeting of February 13, 1979.
Although listed as a witness for Booth, Keast did not testify
at the hearing.
The County Superintendent concluded that the Board's
action to effect Booth's resignation or initiate termination
proceedings constituted an offer by the Board to Booth to
amend their existing contractual relationship; that her
resignation letter constituted acceptance of the Board's
offer; and that her resignation in lieu of formal termination
with 30 days' severance pay constituted consideration. He
also concluded that there was no contractual, procedural or
legal requirement that the Board formally accept Booth's
resignation; that it was established practice for the Board
to request a teacher to resign in lieu of formal termination
proceedings; and that authorization by the Board to the
Superintendent to effect a resignation did not require
further action by the Board to complete the resignation
following receipt of Booth's letter of resignation dated
January 17, 1979. Finally, he concluded that Booth's appeal
to the County Superintendent was timely and that actions
taken by the District Court prior to February 10, 1979, were
not subject to review in that no appeal was undertaken until
February 20, 1979. The County Superintendent held that
Booth's resignation was effective and the School District's
contractual obligation to her was satisfied upon her
acceptance of the severance pay.
Booth filed notice of appeal to the State Superintendent
of Public Instruction, Ed Argenbright, on September 14, 1984.
The matter was briefed and oral argument was held on May 20,
1985. Argenbright issued his decision and order on July 24,
1985, basically affirming the order of the County
Superintendent. Argenbright made additional conclusions of
law in response to arguments raised by the parties.
6a. Acceptance of Board's offer by teacher's
resignation and acceptance of severance pay
considered on [sic] accord as defined in section
28-1-402, MCA.
6b. No recession [sic] of agreement to resign was
accomplished because of teacher's retention of
severance pay.
8. That the decision by the Missoula County
District Court, ordering the County Superintendent
to conduct a hearing, did not evidence or imply a
ruling that the termination obtained by the
Respondent School District was illegal or invalid,
or in any other way breached the merits off [sic]
the controversy presented.
10. That the Missoula County Superintendent did
not make any errors of law in his decision in this
matter.
Booth filed a petition for judicial review in the
District Court of the First Judicial District. The District
Court affirmed the decision of the State Superintendent of
Schools. Booth appeals.
The standard of review in this case is set forth in S
2-4-704 (2), MCA:
(2) The court may not substitute its judgment for
that of the agency as to the weight of the evidence
on questions of fact. The court may affirm the
decision of the agency or remand the case for
further proceedings. The court may reverse or
modify the decision if substantial rights of the
appellant have been prejudiced because the
administrative findings, inferences, conclusions,
or decisions are:
(a) in violation of constitutional or statutory
provisions;
(b) in excess of the statutory authority of the
agency;
(c) made upon unlawful procedure;
(dl affected by other error of law;
(e) clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole
record;
(f) arbitrary or capricious or characterized by
abuse of discretion or clearly unwarranted exercise
of discretion; or
( g ) because findings of fact, upon issues
essential to the decision, were not made although
requested.
We expanded on the proper standard of review in Yanzick
v. School District #23 (1982), 196 Mont. 375, 388, 641 P.2d
432, 439.
From the foregoing, it is apparent that the
procedure in appealing to this Court is identical
to that used in an appeal from any other district
court decision. In this proceeding the District
Court was not the trier of fact. We have here an
appeal from a lower appellant tribunal which in
turn based its conclusions on a review of the
printed record, without the benefit of listening to
and observing the demeanor, conduct and testimony
of witnesses. We hold that this Court should not
substitute its judgment for that of the County
Superintendent as to the weight of the evidence on
questions of fact and that this Court may reverse
or modify the decision if substantial rights of the
appellant have been prejudiced because the
administrative findings and conclusions are clearly
erroneous in view of the reliable, probative and
substantial evidence on the whole record.
In effect, appellant contends this Court should review
the decisions of the County Superintendent and the State
Superintendent de novo, using the Workers' Compensation
standard of review set forth in Rrewington v. Birkenbuel,
Inc. (Mont. 1986), 723 P.2d 938, 43 St.Rep. 1458. Appellant
contends this Court is in as good a position as the original
trier of fact to consider the evidence. We are not in as
good a position as the original trier of fact to consider the
case because we did not have the opportunity to attend the
hearing and view the testimony of the witnesses. Our
function as an appellate court reviewing an administrative
decision is not to substitute our judgment for that of the
County Superintendent but rather to review the whole record
to determine if the administrative findings and conclusions
are clearly erroneous. Yanzick v. School District #23, 196
Mont. at 389, 641 P.2d at 439. We are aware:
(1) that limited judicial review of administrative
decisions strengths the administrative process by
encouraging the full presentation of evidence at
the initial administrative hearing; (2) judicial
economy requires court recognition of the expertise
of administrative agencies in the field of their
responsibility; and (3) limited judicial review
is necessary to determine that a fair procedure was
used, that questions of law were properly decided,
and that the decision of the administrative body
was supported by substantial evidence. (Citations
omitted. )
Northern Plains Resource Council v. Board of Natural
Resources (1979), 181 Mont. 500, 509, 594 P.2d 297, 303.
First, appellant contends that Booth's resignation was
not effective until the School Board accepted it at a meeting
because only the School Board has authority over a teacher's
employment. The District Court held the Board made its
decision to terminate Booth and had Hanson carry the offer to
Booth to amend the existing contractual relationship between
Booth and the Board, with consideration of one month's
severance pay and the opportunity to resign rather than
undergo formal termination proceedings. Booth accepted this
offer by tendering her resignation and accepting the warrant
for severance pay issued by the School District. The School
Board did not need to formally accept the resignation because
it had already decided to terminate Booth and made the offer
to spare her formal termination proceedings. The lower court
did not err on this issue.
Next, appellant contends the School Board cannot
delegate its power of acceptance of an employment contract
and therefore Booth's resignation was timely revoked. The
District Court held there was no delegation of authority
here. It held that the Board made the decision, then
directed Hanson to carry the offer to Booth, a purely
ministerial act. This is correct. The contract was
completed when Booth accepted the offer by tendering her
resignation.
Next, appellant contends the case at issue is barred by
res judicata, collateral estoppel or estoppel by judgment.
Appellant contends the order granting the writ of mandate
effectively directed that the resignation letter signed by
Booth be adjudged void. The District Court held that this
was incorrect for two reasons: first, the issue was not
presented on appeal to the County Superintendent; second, the
writ of mandate was issued to compel the County
Superintendent to comply with S 20-3-210, MCA. It did not
reach the merits of the controversy and thus could not be res
judicata. The District Court did not err in this holding.
Next, appellant makes objection to specific findings of
fact. Having reviewed the record, we find the findings of
fact are supported by substantial evidence.
Next, appellant contends that the teacher was given
improper notice. This issue is outside the stipulated facts
and was not presented to the administrative agency for review
as required by $ 2-4-702(1) (b), MCA. It is axiomatic that we
will not address issues raised for the first time on appeal.
In Re Marriage of Glass (Mont. 1985), 697 P.2d 96, 42 St.Rep.
328; Bowman v. Prater (Mont. 1984), 692 P.2d 9, 41 St.Rep.
2236; Scofield v. Estate of Wood (Mont. No. 83-452, Decided
June 27, 1984), 683 P.2d 1300.
Appellant contends that the School Board's failure to
initiate formal termination proceedings against Booth was in
violation of her due process rights. Again this issue is
outside the stipulated facts and was not presented to the
administrative agency for review.
Appellant contends the issue of accord and satisfaction
as presented by the School Board is precluded by "estoppel by
silence." Appellant does not define "estoppel by silence"
but estoppel is an affirmative defense which must be pled and
proved by the party raising it. Rule 8 (c), M.R.Civ.P. In
this case no evidence was offered that school officials made
statements to Tony Keast regarding the effect of acceptance
of severance pay. As such, there is no evidence in the
record to support this theory.
The decision of the District Court upholding the
decisions of the State Superintendent and County
Superintendent of Schools is affirmed.
We Concur: /
H $f'/f-CJ-y
Chief Justice