LOUIS J. 

!,lo. 82-120 

IN THE SUPREP4E COUST OF THE SYATE I)F YOTJ?P.hJP+ 

3.913 

Plaintiff and Respondent, 

THE BOARD OF TRUSTEES OF SCHOOL DIST. 

NO. 28, LAKE COUNTY, MONT., said Board 

consistin9 of LILLIAN STROTJG, et al., 

Defendants and Appellants. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Lake, The Eonorable 

Douglas G. Harkin, Judge presiding. 

Counsel of Record: 

For Appellants: 

John Frederick, County Attorney, Polson, Montana 

For Respondents: 

Jon E. Ellingson and Nancy 4.;. ploe, Missoula, 

Montana 

- - .- -- --- 

Submitted on Briefs: Plarch lr), 1993 

Decided. May 19, 1983 

Filed: MAY191983 

8 

- ----- clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

A teacher recovered a judgment against the School 

Board for its violation of Montana's Open Meeting Law, 

wrongful termination of employment, and damages of $19,400, 

attorney fees and costs. The School Board appeals. 

Plaintiff is Louie J. Jarussi, a nontenured high 

school principal and teacher in St. Ignatius, Montana. 

Defendant is the Board of Trustees of School District No. 

28, Lake County. 

Jarussi was first employed by the Board for the 1976- 

77 school year. During the 1977-78 school year, he was 

employed as a fulltime principal and Spanish teacher at a 

salary of $18,486. The record indicates he was an exceptional teacher and principal . 

On February 1, 1978, Jarussi met with the Board and 

requested a salary of $21,000 for the following school year. 

The Board closed the meeting apparently to discuss Jarussi's 

request. Jarussi claimed he objected to the closure, but no , . such action was recorded in the minutes of the meeting. The 

Board thereafter returned to open session and offered 

Jarussi $19,200, the offer to be accepted by March 8. 

Jarussi immediately contacted legal counsel to proceed 

against the Board for improperly closing the meeting. The 

Board's presiding officer expressed the Board's anger to 

Jarussi over his complaint and indicated it would not help 

his employment situation. 

Jarussi claimed he verbally accepted the offer of 

employment on March 8. The Board disputed this, and no 

acceptance is noted in the minutes. 

The preliminary budget, including a provision for 
Jarussi's position, was approved on March 15. 

The Board met again on March 29. Part of the meeting 

was again closed without a determination that the demand of 

individual privacy clearly exceeded the merits of public 

disclosure. During the closure of the meeting the Board 

unanimously decided to withdraw its offer of employment to 

Jarussi. Thereafter, the meeting was opened, and a formal 

motion was approved withdrawing the salary increase 

previously offered Jarussi. 

The Board never officially nor specifically eliminated 

Jarussi's position according to the Board's records. 

On April 7, Jarussi demanded a statement of termination by the Board. The Board served notice of termination 

on April 21. 

On April 28, Jarussi filed suit against the Board in 

three counts: (1) for violation of Montana's Open Meeting 

Law adversely affecting his rights and seeking to have the 

Board's decisions declared void; (2) failure to properly 

terminate him in violation of statute; and, (3) retaliation 

against him for exercising his rights under Montana Is Open 

Meeting Law by withdrawal of the offer of employment. 

In June Jarussi requested release from his existing 

contract of employment to seek other employment. He 

accepted a position in Alaska and reported to work in July. 

Following a jury trial , judgment was entered awarding 

Jarussi $16,500 for his loss in selling his property, and 

$2,900 moving expenses. The judgment also included a determination by the District Court without a jury that the Board 

had violated Montana's Open Meeting Law and voided the 

decision of the Board withdrawing its previous offer of 
employment to Jarussi. The judgment included an award of 

attorney fees and costs. Following denial of its motion for 

a new trial, the Board appeals. 

Three issues are raised on appeal: 

1. Was Jarussi required to exhaust his administrative 

remedies before filing suit in District Court? 

2. Should a new trial have been granted because excessive damages were awarded under the influence of passion 

or prejudice? 

3. Did the School Board violate Montana's Open Meeting Law? 

The Board contends that Jarussi was required to 

exhaust his administrative remedies by appealing the Board's 

decision to the county superintendent of schools before 

seeking judicial relief in the courts, citing section 20-3- 

210, MCA, giving the county superintendent sole jurisdiction 

to decide this controversy. 

We hold that Jarussi was not required to exhaust 

administrative remedies within the educational apparatus 

before filing suit in the District Court. 

The District Court is expressly granted jurisdiction 

to void any decision in violation of Montana's Open Meeting 

Law. The pertinent statute provides: 

"Voidability. Any decision made in violation of 2-3-203 [statutory implementation of Montana's Open Meeting Law] may 

be declared void by a district court 

having jurisdiction. A suit to void any 

such decision must be commenced within 30 

days of the decision." (Bracketed descriptive phrase added. ) Section 2-3- 

213, MCA. 

We have previously upheld the jurisdiction of the District Court in actions to enforce Montana's Open Meeting 
Law. Board of Trustees, Huntley Project School Dist. 24 v. 

Board of County Commissioners, Yellowstone County (1980), 

Mon t . , 606 P.2d 1069, 38 St.Rep. 175. Further, 

statutory time constraints negate exhaustion of administrative remedies before the county superintendent of schools 

and the State Superintendent of Public Instruction. 

Moreover, the exhaustion doctrine does not apply to 

constitutional issues. Davies Warehouse Co. v. Bowles 

(1944), 321 U.S. 144, 64 S.Ct. 474, 88 L.Ed. 635; 1 

Am.Jur.2d Administrative Law, S 185 at 484-490. Here, 

Jarussi claims violation of his constitutional right to 

observe the deliberations of the School Board under the 

right to know provisions of the Montana Constitution, 

Article 11, Section 9. Constitutional questions are 

properly decided by a judicial body, not an administrative 

official, under the constitutional principle of separation 

of powers. Art. 111, Section 1, 1972 Mont. Const. 

Next, the Board contends that the jury awarded Jarussi 

excessive damages under the influence of passion and prejudice. The Board argues that the jury exercised no critical 

judgment in its award of economic damages to Jarussi, disregarded the disparity between his increased salary in Alaska 

compared to his salary in Montana, and had to "speculate 

wildly" concerning cost of living differences between Alaska 

and Montana, and that Jarussi's claim of economic losses 

lacked specificity. The Board points out that the jury 

award for loss on the sale of Jarussi's property was the 

midpoint in the range of Jarussi's testimony; awarded him 

actual costs including travel and lodging expenses for 

trial, all attorney fees and all court costs; that the 
minimal period of deliberation and the unanimous verdict 

indicate a passion and prejudice to punish the Board; and 

that the jury apparently disregarded the instruction that it 

could not award damages for pain and suffering, loss of 

consortium, mental distress, loss of reputation and could 

only award tangible pecuniary losses. 

It is important to note that the jury awarded damages 

in this case for wrongful termination of Jarussi's employment, not for violation of Montana's Open Meeting Law. The 

damage award must be reasonable. Section 27-1-302, MCA. The 

damages must be supported by substantial evidence. Johnson 

v. Murray (1982), Mont. , 656 P.2d 170, 39 St.Rep. 

2257; Bjerum v. Wieber (1967), 149 Mont. 375, 427 P.2d 62. 

The law requires only that the trier of fact exercise calm 

and reasonable judgment and the amount of the award rests of 

necessity in the sound discretion of the trier of fact. 

Johnson v. Murray, supra. When there is strong evidence of 

the fact of damage, defendant should not escape liability 

because the amount of damage cannot be proven with precision. Johnson v. Murray, supra, citing Winsness v. M.J. 

Conoco Distributors (Utah 1979), 593 P.2d 1303. 

Here Jarussi testified that he lost between $16,000 

and $17,000 when he had to hastily sell most of his personal 

property in view of his move to Alaska. He testified he 

held a garage sale and that "the move cleaned me out." He 

kept a record of sales of the various items and what he 

originally paid for them, which was not introduced into 

evidence. He testified that his actual moving costs were 

$2,902.50. This testimony was not disputed or questioned on 

cross-examination. No evidence was presented by the Board 
refuting Jarussi's claimed damages. 

We hold the damages awarded were supported by substantial evidence and the jury exercised reasonable judgment in 

determining the amount of the award. The jury awarded 

$16,500 for losses on the sale of Jarussi's personal 

property which was within the range of his testimony. The 

jury also awarded $2,900 moving costs which was slightly 

less than his testimony. The jury awarded court costs and 

attorney fees pursuant to section 2-3-221, MCA. The jury 

also awarded actual cost of travel and lodging expenses for 

trial which was not included in the judgment. 

The difference in salary and cost of living between 

Alaska and Montana is irrelevant as no items of damages 

encompassed this difference. No evidence was introduced by 

the Board supporting an offset on this basis. The verdict 

is clear that no damages were awarded for pain and suffering, loss of consortium, mental distress, loss of reputation 

or noneconomic or intangible damage. Where, as here, the 

amount of damages is clear and uncontradicted, a short 

period of jury deliberation and a unanimous verdict will not 

support a claim of excessive damages influenced by passion 

or prejudice. 

Finally, the Board contends it did not violate 

Montana's Open Meeting Law. The Board argues that closure 

was proper under a statutory provision permitting closure 

"to discuss a strategy to be followed with respect to 

collective bargaining." 

The Montana Constitution provides: 

"RIGHT TO KNOW. No person shall be deprived of the right to examine documents 

or to observe the deliberations of all 

public bodies or agencies of state 
government and its subdivisions, except 

in cases in which the demand of individual privacy clearly exceeds the merits 

of public disclosure." Art. 11, Section 

9, 1972 Mont. Const. 

A statutory implementation of this constitutional mandate 

provides that meetings of a school board shall be "open to 

the public." Section 2-3-203(1), MCA. Subsection (3) of 

that statute provides the following exceptions: 

"However, a meeting may be closed to 

discuss a strategy to be followed with 

respect to collective bargaining or litigation when an open meeting would have a 

detrimental effect on the bargaining or 

litigating position of the public 

agency. " 

There is no claim or evidence that the litigation exception 

in the statute applies. The Board relies solely on the 

collective bargaining exception. The resolution of this 

issue depends on the correct meaning of the term "collective 

bargaining." 

The appropriate guide to determine the meaning of 

words and phrases is section 1-2-106, MCA. The statute 

reads : 

"Construction of words and phrases. Words 

and phrases used in the statutes of 

~ontana are construed according to the 

context and the approved usage of the 

language, but technical words and phrases 

and such others as have acquired a peculiar and appropriate meaning in law or 

are defined in chapter 1, part 2, as 

amended, are to be construed according to 

such peculiar and appropriate meaning or 

definition." 

The common meaning of the term "collective bargaining" 

is identical to that used in the technical, legal sense. 

The American College Dictionary defines collective 

bargaining as "the process by which wages, hours, rules, and 

working conditions are negotiated and agreed upon by a union 
with an employer for all the employees collectively whom it 

represents." American College ~ictionary 236 (1966). 

Black's defines collective bargaining as: 

". . . a procedure looking toward making 

of collective agreements between employer 

and accredited representative of employees concerning wages, hours, and other 

conditions of employment, and requires 

that parties deal with each other with 

open and fair minds and sincerely 

endeavor to overcome obstacles existing 

between them to the end that employment 

relations may be stabilized and obstruction to free flow of commerce prevented. . . . Negotiation between an employer and 

organized employees as distinguished from 

individuals, for the purpose of determining by joint agreement the conditions of 

employment." Black's Law Dictionary, 

238-39 (Rev. 5th ed. 1979). 

The "appropriate" and "peculiar" meaning of the term 

in the law is expressed in the National Labor Relations Act. 

It is contemplated in the definition of "unfair labor 

practice" that collective bargaining is negotiation between 

the employer and a representative of the employees. 29 USCA 

Numerous federal cases have held that collective bargaining has the well understood meaning in the law of 

settling disputes by negotiation between the employer and 

the representative of the employees. See e.g., United 

Construction Workers v. Haislip Baking Co. (4th Cir. 1955), 

223 F.2d 872. " . . . Collective bargaining is an activity, 

presupposing that the employees shall have opportunity in 

absence of their employer to canvass their grievances, 

formulate their demands in common, and instruct an advocate 

who they believe will best press their suit." NLRB v. Stow 

Manufacturing Co. (2nd Cir. 1954), 217 F.2d 900, 904. 

There is no specific definition of collective bargain- 
ing in Montana law. Therefore, we adopt the definition 

brought forth by the foregoing authority. 

We af f irm the Dis tr ict Court ' s conclusion that the 

closing of the meeting to discuss Jarussi's employment 

status does not fall within the collective bargaining 

exception, thus voiding action taken by the Board regarding 

Jarussi. Jarussi was dealing with the School Board 

regarding his own future employment. His actions were not 

on behalf of anyone else and the Board's decisions would not 

affect anyone else. Hence, Jarussi had the right to be 

present during the Board's deliberations regarding his 

future with the School District. 

If we were to adopt the Board's interpretation of 

collective bargaining, another avenue would be available to 

close public meetings. This undermines the policy of the 

Open Meeting Law and is contrary to the legislative mandate 

that the open meeting provisions should be liberally 

construed. 

Affirmed. 

fo 

Chief Justice 

We concur: