NO. 93-021

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

TRUSTEES, CARBON COUNTY

SCHOOL DISTRICT NO. 28,

Petitioner and Respondent, '.

V . 1,

t

HELEN SPIVEY, DEC22 1993

Respondent and Appellant. ta 3',,&4. ':

CLERKOFSUPR@MECOURT:

STATE OF MONTANA

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Carbon,

The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Emilie Loring, Attorney at Law, Missoula, Montana

For Respondent:

Laurence R. Martin and Sol Lovas, Felt, Martin

& Frazier, Billings, Montana

Filed:

Submitted on Briefs: August 26, 1993

Decided: December 22, 1993
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal from a Thirteenth Judicial District Court,

Carbon County, order reversing the State Superintendent's reversal

of a County Superintendent's conclusion that the Trustees of Carbon

County School District No. 28 correctly terminated Helen Spivey's

teaching contract. We affirm.

We restate the issues on appeal:

I . Did the trial court use the correct standard of

review when it reversed the State Superintendent's

decision?

II. Should County Superintendent Reynolds have reviewed

this action de nova?

III. Did the State Superintendent correctly conclude

that:

A. there was not substantial evidence to support

County Superintendent Reynolds' conclusion that

Spivey's teaching contract was correctly

terminated?

B . Reynolds erred in concluding that Spivey's

termination was not premature?

C. Reynolds erred in concluding that Spivey could

be terminated because of insubordination?

FACTS

Appellant, Helen Spivey (Spivey) was a Montana certified,

tenured teacher in the Carbon County School District No. 28. The

Respondents are the Trustees of the Carbon County School District

No. 28 (Trustees).

Spivey had taught in a multi-grade classroom at Boyd School in

Carbon County for 8 years. The teaching staff at Boyd School

consisted of one teacher, Spivey and one aide, Kathy Grewell.

2
Problems arose during the 1985-1986 school year which culminated in

a letter to Spivey from Bruce McKee, a school board trustee, to

inform her that there had been a recommendation to terminate her

teaching contract. She waived the right to a hearing before the

Trustees. In a letter from the Trustees, dated March 31, 1986,

Spivey was notified that they had voted unanimously to terminate

her teaching contract and "not offer [her] a new contract for the

ensuing 1986-1987 school year." Further facts will be provided as

necessary in the body of the opinion.

PROCEDURAL BACKGROUND

Spivey appealed the Trustees' decision to the county

Superintendent of Schools, Carbon County. Edith Evans (Evans),

Deputy County Superintendent of Schools, Stillwater County, sat in

place of Peggy Kotar (Kotar), Superintendent of Schools, Carbon

County, who had disqualified herself. Evans reversed the decision

of the Trustees, concluding that "Spivey was given inadequate

opportunity to remedy the problems" and "[t]he admissible

evidence... is insufficient to establish good cause for Spivey's

termination....*' (County Decision I) Evans ordered reinstatement

of Spivey as a tenured teacher in the Boyd School "with no loss in

salary or fringe benefits." The Trustees appealed this decision to

the State Superintendent of Public Instruction, Ed Argenbright

(Argenbright). Argenbright reversed Evans' decision and affirmed

the Trustees. (State Decision I)

Spivey appealed Argenbright's order to the First Judicial

District Court, Lewis and Clark County. (District Court Decision I)

3
The trial court made the following conclusions:

1 . "Good cause can be based only on competent evidence

regarding the actions or inactions of the teacher in question."

2. Letters from parents who were available to testify at the

hearing could be considered for content containing parents'

observation and parents' intentions. Information contained in the

letters of descriptions of what the children told their parents

should have properly been excluded as hearsay.

3. Letters from Mr. Christensen, Superintendent of Yellowstone

County Schools and letters from parents unavailable to testify at

the hearing were properly excluded.

4. Since the State Superintendent did not address the County

Superintendent's conclusion that Spivey was not given adequate time

to address her problem areas (with the exception of playground

supervision), the County Superintendent's conclusion was affirmed.

5 . The State Superintendent's conclusion that there was

substantial credible evidence of insubordination must be reversed

because it was not part of the County Superintendent's findings

below.

6 . Because evidence was improperly excluded when the County

Superintendent made her initial decision, the case was remanded to

the County Superintendent to reconsider the evidence in light of

these holdings to determine whether there was reliable, probative

and substantial evidence to find good cause for Spivey's

termination.

O n remand, the case was considered by Acting County

4
Superintendent of Schools, Carbon county, Carole Reynolds

(Reynolds). (County Decision II) Reynolds reviewed the transcript

de novo, concluding that "loss of confidence in the teacher was

justified and is just cause for termination." She also concluded

that insubordination was just cause for termination and Spivey was

insubordinate on at least three occasions. Finally, she concluded

that Spivey's actions were "patently unacceptable and the

termination of Petitioner was not Premature."

Reynolds' decision was appealed to the Superintendent of

Public Instruction Nancy Keenan (Keenan). (State Decision II)

Keenan reversed Reynolds' decision, concluding that Reynolds erred

in finding that Spivey could be terminated for insubordination: she

erred in finding that Spivey's termination was not premature: and

finally, that she erred in holding "that there was reliable,

probative and substantial evidence on the whole record which

identifies actions or inactions of Spivey which resulted in loss of

parental confidence and potential loss of students."

The State Superintendent's order was appealed to the

Thirteenth Judicial District Court, Carbon County. (District Court

Decision II) The District Court reversed the State Superintendent

and affirmed the findings of fact and conclusions of law of the

County Superintendent of Stillwater County. The court concluded

that there was substantial evidence to uphold Reynolds' finding

that parents had lost confidence in Spivey. It further concluded

that this loss of confidence was based on specific actions and

inactions by Spivey and the State Superintendent should have

5
affirmed the County Superintendent's conclusion that loss of

parental confidence was good cause for termination. The court also

determined that the County Superintendent's conclusion that

Spivey's insubordination was good cause for termination was

correct. Finally, the court determined that the evidence suggested

that Spivey's actions were patently unacceptable because parents

had threatened to remove their children from the school. Because

these actions were patently unacceptable, the County Superintendent

correctly concluded that Spivey's termination was not premature.

Spivey appealed the District Court's order to this Court which

brings us to the present action.

STANDARD OF REVIEW

Our standard of review for findings of fact is whether a

finding is "clearly erroneous." Steer Inc. v. Department of

Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603. ” [Al

finding is 'clearly erroneous' when, although there is evidence to

support it, a review of the record leaves the court with the

definite and firm conviction that a mistake has been committed."

Steer, 803 P.2d at 603. Our standard of review for conclusions of

law is whether the tribunal's interpretation of the law is correct.

Steer, 803 P.2d at 603.

OPINION

Spivey argues that the District Court did not correctly apply

5 2-4-704, MCA, and that it substituted its judgment for that of

the State Superintendent. It was the State Superintendent's job to

determine whether the County Superintendent exceeded her authority

6
upon remand of the case and whether the admissible evidence

Reynolds reviewed established good cause for terminating Spivey's

contract. The District Court was "then limited to the standards of

review of the Administrative Procedure Act. In deciding matters

not before him the District Judge exceeded the proper scope of

review." Finally, Spivey argues that there is substantial evidence

in the record to support the findings and conclusions of the State

Superintendent and that she should have been affirmed.

The Trustees state that what Spivey is really arguing is that

the District Court reviewed the wrong decision - it should have

reviewed "the State Superintendent's decision for factual support

and legal error, rather than reviewing the County Superintendent's

decision." They contended that she then proceeded to argue two

issues that were not really stated in her statement of the issues.

She argues that Reynolds exceeded the scope of her authority on

remand from the First Judicial District Court and that the facts on

the record support the State Superintendent's decision but do not

support the County Superintendent's findings and conclusions.

I. CORRECT STANDARD OF REVIEW

The proper standard of review in a case such as this, which is

reviewed at a number of different levels, has caused a great deal

of confusion. We therefore take this opportunity to clarify this

area of the law. The decision of the county superintendent is

subject to review by the state superintendent under Rule 10.6.125

ARM, which provides as follows:

10.6.125 APPELLATE PROCEDURE - STANDARD OF REVIEW

(l)The state superintendent of public instruction shall

7
be subject to the standard of review as set forth below

and shall be confined to the record established at the

factfinding hearing.

(2) In cases of alleged irregularities in procedure

before the county superintendent not shown on the record,

proof thereof may be taken by the state superintendent.

(3) The state superintendent, at his/her discretion

or upon request, may hear oral arguments and receive

written briefs.

(4) The state superintendent may not substitute

his/her judgment for that of the county superintendent as

to the weight of the evidence on questions of fact. The

state superintendent may affirm the decision of the

county superintendent or remand the case for further

proceedings or refuse to accept the appeal on the grounds

that the state superintendent fails to retain proper

jurisdiction on the matter. The state superintendent may

reverse or modify the decision if substantial rights of

the appellant have been prejudiced because the findings

of fact, conclusions of law and order are:

(4 in violation of constitutional or statutory

provisions:

(b) in excess of the statutory authority;

(c) made upon unlawful procedure:

(d) 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;

essenE1

affected because findings of fact upon issues

to the decision were not made although

requested.

The decision of the state superintendent, in turn, is subject to

review by a district court under 5 2-4-704, MCA, which provides:

Standards of review. (1) The review shall be conducted

by the court without a jury and shall be confined to the

record. In cases of alleged irregularities in procedure

before the agency not shown in the record, proof thereof

may be taken in the court. The court, upon request,

shall hear oral argument and receive written briefs.

(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:

a
(a) the administrative findings, inferences,

conclusions, or decisions are:

(i) in violation of constitutional or statutory

provisions;

(ii) in excess of the statutory authority of the

agency:

(iii) made upon unlawful procedure;

(iv) affected by other error of law;

(VI clearly erroneous in view of the reliable,

probative, and substantial evidence on the whole record;

(vi) arbitrary or capricious or characterized by

abuse of discretion or clearly unwarranted exercise of

discretion; or

(b) findings of fact, upon issues essential to the

decision, were not made although requested.

Section 2-4-704, MCA, and Rule 10.6.125, ARM, are almost

identical. The salient points in both are that the reviewing body

may not substitute its judgment for that of the lower body as to

the weight of the factual evidence and that the reviewing body may

affirm, remand, reverse or modify the prior decision. Both require

reversal or modification of a decision of a lower body if

substantial rights of the appellant have been prejudiced because of

certain errors found in the lower body's findings and conclusions.

The major cause of confusion in the instant case is whether,

under § 2-4-704, MCA, a district court should review the decision

of the county superintendent or the decision of the state

superintendent.

A district court, reviewing a decision appealed from the state

superintendent, which was appealed from a county superintendent's

decision, must review the decision of the state superintendent.

Trustees, Missoula Cty S.D. 1 v. Anderson (1988), 232 Mont. 501,

504, 757 P.2d 1315, 1317. However, in order to review the decision

of the state superintendent and insure that she has correctly

9
reviewed the county superintendent's decision, the district court

must review the findings and conclusions of the county

superintendent. The district court must decide whether the county

superintendent's findings and conclusions were supported by

reliable, probative and substantial evidence in the first instance

in order to determine whether the state superintendent reviewed and

correctly affirmed or reversed the decision of the county

superintendent.

Here, the District Court correctly reviewed State Decision II

but it could not do so without focusing on County Decision II

first. It properly reviewed County Decision II, noting that the

conclusions were supported by reliable, probative and substantial

evidence, and concluded that because the County Superintendent

properly determined that Spivey's contract was terminated for good

cause, the State Superintendent should have affirmed County

Superintendent Reynolds' decision. (We note that the county

superintendent is required to hold a de novo hearing when deciding

a controversy between the school and a teacher whose contract was

terminated. Yanzick v. School District No. 23, Etc. (1982), 196

Mont. 375, 641 P.2d 431.)

The District Court determined that differences in the findings

and conclusions of County Decision II from those of County Decision

I were not improper because the District Court Decision I

instructed Reynolds, upon remand, to review additional evidence

which had been previously excluded. The court noted that the

additional evidence included "such items as the children's

10
attitudes toward school, the lack of discipline at school, the

parents' dissatisfaction with their conversations with Spivey about

their children's problems, and Spivey's failure to respond to such

problems." This evidence led County Superintendent Reynolds to

conclude that Spivey's contract was correctly terminated, and the

State Superintendent should have affirmed this decision because the

County Superintendent's decision was based on substantial evidence.

II. COUNTY DECISION II

Spivey argues that County Superintendent Reynolds should not

have reviewed the entire record de novo, when deciding County

Decision II. Rather, she should have considered specific evidence,

such as "the parents' intentions and observations and whether

Spivey had adequate opportunity to improve her playground

supervision...." The Trustees counter that "County Superintendent

Evans' findings were voided and entirely thrown out by Judge

Bennett when he ruled that the key issues - good cause and

prematureness - had to be entirely reconsidered. Therefore, the

case stood in the position of having a hearing record, but no

findings on the key issues of good cause and prematureness."

We conclude that County Decision II was properly based on a de

novo review of the record. When the original trial level official

is replaced, a subsequent trial level official has the authority to

make new findings and conclusions if there is no protest from

either of the parties. As stated in Phalen v. Rilley (1970), 154

Mont. 399, 403, 465 P.2d 102, 105. citing Worden v. Alexander et

al. (1939), 108 Mont. 208, 211, 90 P.2d 160, 161:

11
While there is some conflict in the authorities, the

decided weight of authority is that when the trial judge

to whom the case has been submitted upon evidence

introduced before him dies before making findings of

fact, his successor has no authority to make findings of

fact and conclusions of law without the consent of the

parties involved; in such a case any party has the right

to insist upon a new trial. (Citing cases.) However, a

party may waive his right to a new trial and consent that

the successor may decide the case made on the record

before the trial judge. (Citing cases.)

We find this proposition applies in this case. Nothing in the

record suggests that Spivey protested against the substitution of

County Superintendent Reynolds nor did she request a new trial. I n

addition, when the case was remanded by the First Judicial District

Court with the proviso, "so that she can reconsider the evidence in

light of our holdings and make a determination on these issues,"

the County Superintendent was given latitude in her decision-making

beyond the parameters of County Decision I. Zavarelli v. Might

(1989) r 239 Mont. 120, 125-126, 779 P.2d 489, 493, is instructive:

We come now to the effect of the mandate from this

Court to the District Court when, on reversal and

remittitur, the District Court was instructed to take

t'such further proceedings as are necessary in light of

this opinion and the facts found by the District Court."

"On remand, the trial court may consider or decide any

matters left open by the appellate court, and is free to

make any order or direction in further progress of the

case, not inconsistent with the decision of the appellate

court, as to any question not presented or settled by

such decision. The issues are generally open on a

retrial when a case is reversed and remanded for further

proceedings. If the mandate speaks only in the light of

the special facts found, the lower court is at liberty to

proceed in all other respects in the matter that,

according to its judgment, justice may require. The

trial court should examine the mandate and the opinion of

the reviewing court and proceed in conformity with the

views expressed therein. The mandate is to be

interpreted according to the subject matter and, if

possible, in a manner to promote justice." (Citation

12
omitted.)

Additionally Zavarelli continues:

When this Court reversed the first judgment of the

District Court as to a prescriptive easement, and

remanded the cause to the District Court for further

proceedings, the cause was then before the District Court

in the posture of not having a final judgment. In that

situation, when there is nothing in the terms of the

mandate to prevent it, the trial court has the power, on

reconsideration, to find the same facts and change its

holding, or to find different facts consistent with its

original holding.

Zavarelli, 779 P.2d at 493. (Citation omitted.)

District Court Decision I stated:

Neither this Court nor the State Superintendent is

empowered to weigh the evidence in this case. By the

same token this Court cannot act as an expert in matters

of teacher termination. Thus, we are unable to determine

whether, with the inclusion of the previously excluded

evidence, there is good cause to justify termination.

Further, we have heard no argument and make no holding as

to whether, in any event, Spivey's termination was

premature because she had not been given adequate

opportunity to address the identified problems or whether

her actions were so patently unacceptable that she could

be termination (sic) without such an opportunity.

Therefore it is hereby ORDERED that this case be

remanded to the County Superintendent so that she can

reconsider the evidence in light of our holdings and make

a determination on these issues.

The District Court left open the determination of good cause

for the termination of Spivey's contract and the prematureness of

her contract termination and whether Spivey's actions were so

patently unacceptable that she could be terminated without an

opportunity to adequately address the problems. County

Superintendent Reynolds was free to determine anew the issues in

the present action in County Decision II.

III. STATE SUPERINTENDENT'S CONCLUSIONS

13
The State Superintendent in State Decision II concluded that

there was not substantial evidence in County Decision II to support

Reynolds' conclusions of law that Spivey's teaching contract was

properly terminated, that Reynolds' erred in determining that

Spivey's termination was not premature and in determining that

Spivey could be terminated because of insubordination.

A. SUBSTANTIAL EVIDENCE TO TERMINATE CONTRACT

Spivey contends that the State Superintendent correctly

determined that Where was not reliable, probative and substantial

evidence on the whole record which identified actions or inactions

of Spivey which resulted in loss of parental confidence and

potential loss of students." However, a close review of the record

reveals that the District Court properly concluded that there was

substantial evidence on the record to support County Superintendent

Reynold's conclusion that actions and inactions of Spivey resulted

in loss of confidence by parents, particularly when Reynolds

reviewed the evidence which had been excluded in County Decision I.

A number of parents reported that their children were unhappy and

disenchanted with school. There were eyewitness accounts of

incidents of lack of supervision and disciplinary problems with the

children. A number of parents stated that they would remove their

children from the school if the teacher was retained. Because

reliable, probative and substantial evidence supports Reynolds'

determination that Spivey had lost the confidence of the parents

due to her various actions and inactions, the State Superintendent

substituted her judgment for that of the County Superintendent and,

14
thus, erred in reversing this conclusion in County Decision II

B. PREMATURENESS OF TERMINATION

Spivey contends that Reynolds erred in concluding that the

termination of her contract was not premature. She also asserts

that Reynolds had no jurisdiction to make a decision regarding

whether the termination was premature. The Trustees, on the other

hand, state that the County Superintendent correctly held that the

problems were so serious as to be patently unacceptable and

therefore a period of remediation was not required. The Trustees

further assert that since Spivey would not admit to any problem

areas, a period of remediation would have been useless.

We conclude that County Superintendent Reynolds properly

determined that Spivey's termination was not premature. District

Court Decision I provides the framework within which County

Decision II was to have been decided and it provides:

[W]e have heard no argument and make no holdinq as to

whether, in any event, Spivey's termination was premature

because she had not been given adequate opportunity to

address the identified problems or whether her actions

were so patently unacceptable that she could be

termination (sic) without such an opportunity. (Emphasis

added.)

Clearly, in its final holding, the issue of whether Spivey's

termination was premature was left open for decision in County

Decision II. Spivey argues, however, that the District Court

Decision I concluded that Spivey did not have adequate time to

address the problems other than playground supervision. Spivey

cites the District Court decision, page 14, lines 7-14 which

states:

15
We reiterate however that the State Superintendent made

no findings or conclusions regarding the other items

[other than playground supervision] listed in the

directives. Therefore, we infer that he agreed with the

County Superintendent [Evans] that Spivey had not been

given adequate opportunity to remedy these problems.

Because there is no disagreement, we will not review this

issue and further affirm the County Superintendent's

conclusion that Spivey had not been given adequate

opportunity to address the other problems.

Although this passage is indeed, inconsistent with the passage

aforementioned, the trial court's final holding in District Court

Decision I is determinative. It clearly states that it makes no

holding as to the issue of whether Spivey had an adequate

opportunity to address the identified problems. Therefore, this

issue was left open for County Superintendent Reynolds to decide

after a de nova review in County Decision II.

There was sufficient evidence presented to establish actions

which resulted in parents ' threats to withdraw their children from

the school. There was also evidence that Spivey would not

acknowledge that there were deficiencies upon which to improve.

This evidence is sufficient to support a conclusion that the County

Superintendent did not abuse her discretion in determining that

Spivey's actions and inactions were patently unacceptable and that

she could be terminated without an opportunity to improve her

deficient areas. Hence, the State Superintendent erred in

reversing the County Superintendent in State Decision II. As was

so aptly stated in Siglin v. Kayenta Unified School Dist. No. 27

(Ariz. 1982), 655 P.2d 353, 357,

[I]t was not the function of the trial court to determine

whether there was evidence to support a conclusion that

Mr. Siglin should have been retained. Rather, it was the

16
function of the trial court to determine whether

reasonable evidence supported the school board's

determination that good cause existed for dismissal.

(Citations omitted.)

This reasoning applies equally to the State Superintendent and the

District Court in this case. The function of both levels of review

is to determine whether the original hearing officer's findings of

fact are supported by substantial evidence and the conclusions of

law are not characterized by an abuse of discretion. Here, the

District Court correctly concluded that County Superintendent

Reynolds could properly consider the issue of whether Spivey's

termination was premature and that she properly determined that the

termination was not premature because Spivey's actions were

patently unacceptable.

C. INSUBORDINATION

Finally, Spivey contends that the issue of insubordination was

not remanded by the District Court and the County Superintendent

did not have jurisdiction to consider evidence on insubordination.

As stated earlier in this opinion, the "trial courtl* may consider

any issues left open by the appellate court in further progress of

the case and may proceed in all other respects as justice may

require. Zavarelli, 779 P.2d at 493. The County Superintendent

appropriately considered the issue of insubordination because there

was substantial evidence that she left the school premises before

the end of the school day, failed to attend board meetings and

failed to supervise the students on the playground after a mandate

to that effect had been issued. Insubordination, in itself, can be

a reason for termination of a teaching contract. Ware v. Morgan

17
cty . School D. No. E-3 (Col. 1988), 748 P.2d 1295; Siqlin, 655

P.2d at 357.

In conclusion, County Decision II is supported by substantial

credible evidence and the County Superintendent did not abuse her

discretion in formulating her conclusions of law. The State

Superintendent, however, erred in not affirming the County

Superintendent's decision and in substituting her own judgment for

that of the County Superintendent. Finally, the District Court

correctly reviewed the State Superintendent's decision by focusing

upon the County Superintendent's findings and conclusions and

concluding that County Decision II was supported by the record.

AFFIPWSD.

We Concur:

18
Justice Terry N. Trieweiler specially concurring in part and

dissenting in part.

I concur in that part of the majority opinion which discusses

the proper standard of review in a case like this which originated

before the County Superintendent, and after an intermediate state

level of review, was appealed to the State District Court.

However, I dissent from that part of the majority opinion

which affirms the decision of the second County Superintendent

because I conclude that it was contrary to the first District

Court's decision, exceeded the scope of issues to be decided on

remand, and was contrary to the law of the case as established by

the first District Court appeal.

In the first District Court opinion, Judge Gordon Bennett

concluded that this case should be remanded to the County

Superintendent for determination of whether there was good cause to

support Spivey's termination considering parents' observations

which were not considered in the first decision. However, he

specifically held that loss of parental confidence did not

establish good cause for termination, and that insubordination,

since not raised on appeal, could not form the basis of Spivey's

termination.

He held that "good cause cannot be based on strictly external

factors such as community hostility. Good cause can be based only

on competent evidence regarding the actions or inactions of the

teacher in question."

With regard to insubordination, he held that:

19
Initially, we note that the County Superintendent

did not make any finding or conclusion on the trustees'

allegation of insubordination and that the trustees did

not assert this omission as error in the appeal to the

State Superintendent. Nevertheless, the State

Superintendent found that there was substantial credible

evidence of insubordination. . . . Spivey has challenged

this finding.

The Montana Supreme Court has stated explicitly

that: "Findings of the reviewing agency properly cannot

be included as facts when they are not part of the

findings below." Thus, we must reverse the State

Superintendent on this issue. [Citation omitted].

This case was not remanded by the original District Judge to

the County Superintendent for further findings regarding

insubordination. He concluded that because the Trustees had not

appealed the failure of the original County Superintendent to find

insubordination, that that issue could not be raised on appeal, and

the absence of insubordination was a final determination.

However, on remand, the second County Superintendent based her

decision to uphold the termination of Spivey on two conclusions:

(1) "loss of confidence in the teacher;" and (2) "insubordination."

These conclusions were contrary to the law of the case as

established by the District Court and should be reversed.

I also conclude that the second County Superintendent ignored

the mandate from the District Court regarding the determination of

whether or not Spivey's termination was premature. The District

Court concluded that Spivey had been given adequate notice that her

playground supervision was deficient, and had been given an

adequate opportunity to correct that aspect of her performance.

However, the court went on to add that since the State

20
Superintendent made no findings or conclusions regarding Spivey's

opportunity to correct other alleged deficiencies in her

performance,

[w]e infer that he agreed with the County Superintendent

that Spivey had not been given adequate opportunity to

remedy these problems. Because there is no disagreement,

we will not review this issue and further affirm the

County Superintendent's conclusion that Spivey had not

been given adequate opportunity to address the other

problems.

In conclusion, the District Court held that:

Further, we have heard no argument and make no holding as

to whether, in any event, Spivey's termination was

premature because she had not been given adequate

opportunity to address the identified problems or whether

her actions were so patently unacceptable that she could

be termination [sic] without such an opportunity.

Based on these two conclusions by the District Court, the

County Superintendent was left with two options. She could

conclude that Spivey's termination was justified based on

inadequate playground supervision alone, or she could conclude,

based on the additional evidence, that there was good cause for her

termination based on other deficiencies in her performance, and

that those deficiencies were "so patently unacceptable that she

could be terminated without an opportunity to correct her

inadequacies." On remand, the second County Superintendent did

neither. She did not base her conclusion that there was good cause

for termination on inadequate playground supervision. She did

conclude that Spivey's conduct was patently unacceptable, but did

not set forth the particulars in which it was patently unacceptable

so that a reviewing court could determine whether or not Spivey's

21
conduct created a legal exception to the rule that tenured teachers

are entitled to an opportunity to cure inadequacies in their

performance. The only reasons given as justification for Spivey's

termination were loss of parental confidence and insubordination,

which, for the reasons set forth previously, were beyond the scope

of the issues to be considered by the County Superintendent on

remand from the District Court.

For these reasons, I dissent from that part of the majority

opinion which holds that the second County Superintendent did not

abuse her discretion by exceeding the scope of her mandate from the

District Court.

Justice William E. Hunt, Sr., joins in the foregoing concurrence

and dissent.

Justi<e

22
December 22, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following

named:

Emilie Loring

Attorney at Law

500 Daly Ave.

Missoula, MT 59801

Laurence R. Martin

Felt, Martin, Frazier & Novas

P.O. Box 2558

Billings, MT 59103-2558

Kathleen Holden

Oftice of Public Instruction

State Capitol

Helena, MT 59620