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., saidBoard consistin9of LILLIAN STROTJG, etal., Defendants and Appellants.

Appeal from: DistrictCourt of theFourth Judicial District, Inand 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

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### -- --- Submitted on Briefs: Plarch lr), 1993 Decided. May 19, 1983

Filed: 

## MAY191983 8

- ----- clerkMr. Chief Justice Frank I. Haswell delivered the Opinion of theCourt. 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 SchoolBoard 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. Jarussiwas firstemployed by theBoard 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 exceptionalteacher and principal

# . On February 1, 1978, Jarussi 

### met with the Board and requested a salaryof $21,000 for thefollowingschoolyear. The Board closed themeeting apparentlytodiscussJarussi's request. Jarussiclaimed he objected totheclosure, butno

,

### . such actionwas recorded intheminutes of themeeting. The Board thereafter returned to open session and offered Jarussi $19,200, the offer tobe accepted by March 8. Jarussiimmediately contacted legalcounsel toproceed 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 hisemployment situation. Jarussi claimed he verbally accepted the offer of employment on March 8. The Board disputed this, and no acceptance is noted intheminutes. The preliminary budget, including a provision forJarussi's position, was approved on March 15. The Board 

### metagain on March 29. Partof themeeting

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 offeredJarussi. The Board never officiallynor specificallyeliminated Jarussi's position according totheBoard's records. On April 7, Jarussi demanded a statement of termination by the Board. The Board served notice of termination

onApril 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 tohave the Board's decisions declared void; (2) failure to properly terminatehim inviolation of statute; and, (3)retaliation against him for exercising his rights under MontanaIsOpen Meeting Law by withdrawal of theoffer of employment. In June Jarussi requested release from his existing contract of employment to seek other employment. He accepteda position inAlaska and reported towork inJuly. 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 alsoincluded a determinationby theDistrictCourtwithout ajury thattheBoard 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 itsmotion for

a new trial, the Board appeals. Three issues are raised on appeal: 1. Was Jarussi required to exhausthis administrative remediesbefore filing suit in DistrictCourt? 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 remediesby 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 theDistrictCourt. The District Court is expressly granted jurisdiction to void any decision in violation of Montana's Open Meeting Law. Thepertinent statuteprovides: "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 decisionmust be commenced within 30 days of the decision." (Bracketed descriptive phrase added.) 

### Section 2-3- 213,MCA. We have previously upheld the jurisdiction of theDistrict 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), Mont

# . , 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, 1972Mont. Const. Next, the Board contends that the jury awardedJarussi 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 theminimal period of deliberation and the unanimous verdict indicate a passion and prejudice to punish the Board; and thatthejury apparentlydisregarded the instruction thatit could not award damages for pain and suffering, loss of consortium, mental distress, loss of reputation and could onlyaward tangiblepecuniary losses. It is important tonote that the jury awarded damages in this case for wrongful termination of Jarussi's employment, not forviolation of Montana's Open Meeting Law. The damage award must be reasonable. Section27-1-302, 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 reasonablejudgment and the amount of theaward 

### 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), 593P.2d 1303. Here Jarussi testified that he lost between $16,000 and $17,000 when he had tohastilysellmost of hispersonal 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 testimonywas notdisputed orquestioned on cross-examination. No evidence was presented by the Boardrefuting Jarussi's claimed damages. We hold thedamages awarded were supported by substantialevidence and thejury 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 costof travel and lodging expenses for trialwhich was not included in thejudgment. 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, lossof consortium, mental distress, lossof 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 verdictwillnot 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 collectivebargaining." The Montana Constitutionprovides: "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 stategovernment and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure." Art. 11, Section 9, 1972Mont. 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 statuteprovides thefollowing exceptions: "However, a meeting may be closed to discuss a strategy to be followed with respect tocollectivebargaining or litigationwhen 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 issuedependson thecorrectmeaning of theterm "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 andphrases. Words and phrases used in the statutes of ~ontanaare construed according to the context and the approved usage of the language, but technicalwords and phrases and such others ashave acquired a peculiar and appropriate meaning in law or are defined in chapter 1, part 2, as amended, aretobe construed according to such peculiar and appropriate meaning or definition." The common meaning of theterm "collectivebargaining" is identical to that used in the technical, legal sense. The American College Dictionary defines collective bargaining as"theprocessby which wages, hours, rules, and working conditions arenegotiated and agreedupon by a union

### with an employer for all the employees collectively whom it represents." American College ~ictionary236 (1966). Black's defines collectivebargaining 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 thepurpose 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 theNational Labor RelationsAct. 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. (4thCir. 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. (2ndCir. 1954), 217F.2d 900,904. There isno specific definition of collectivebargain-ing in Montana law. Therefore, we adopt the definition brought forthby theforegoing authority. We affirm 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 theBoard regarding Jarussi. Jarussi was dealing with the School Board regarding his own future employment. Hisactionswere not

on behalf of anyone else and theBoard's decisionswould not affect anyone else. Hence, Jarussi had the right to be present during the Board's deliberations regarding his futurewith theSchoolDistrict. 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 tothe legislativemandate that the open meeting provisions should be liberally construed. Affirmed. 

# fo Chief Justice Weconcur: