### No. 13323 INTHE SUPREME COURT OF THE STATE OF MONTANA 

### 1976

WESLEY A. 

### LINDGREN, Petitioner and Appellant,

BOARD 

### OF TRUSTEES, 

### HIGH SCHOOL DISTRICT NO. 

### 1, FERGUS COUNTY, and DOLORES COLBURG, SUPERINTENDENTOF PUBLIC INSTRUCTION, Respondents and Respondents.

Appeal from: District Court of theFirstJudicialDistrict, Honorable PeterMeloy

# ,Judgepresiding

# . Counsel of Record: For Appellant: 

### McKittrick and Duffy, Great Falls, Montana 

### D. PatrickMcKittrick argu&d,Great Falls, Montana For Respondents: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana Smith, Smith and Sewell, Helena, Montana Chadwick 

### H. Smith argued, Helena, Montana

Submitted: October 20, 1976 Decided: 

## OEC

## 221976 Filed: 

## DEC

## 221976Mr. Justice Gene B. Daly delivered the Opinion of the Court.

This is an appeal from a judgment of thedistrictcourt, Lewis and Clark County. The judgment affirmed a decision of the Supreintendent of Public Instruction, upholding thedecision of the County Superintendent of Schools, Fergus County, inthematter of thedismissal of Wesley A. Lindgren by the Board of Trustees of School DistrictNo. 

### 1,Fergus County. Appellant was employed asan industrial artsand math teacher atFergus County High School. Hehad had teaching contracts with Fergus County School DistrictNo. 1for fourteen consecutive years and was a tenure teacher. On April 2, 1973, theBoard of Trustees of School District No. 1, hereinafter referred toasthe Trustees, offered appellant a contract to teach for the 1973-74 school year; he signed and returned the contract on April 30, 1973. On April 

### 14, 1973, appellant was arrested and charged with the violations of drivingwhile under the influence of intoxicating liquor (thirdoffense) and drivingwithout a valid driver's license. Heplead guilty tothese charges. Imposition of sentencewas deferred for one year upon condition that appellantcomplete theAlcohol Rehabilitation and Treatment Program atthe statehospital atGalen and thereafter regularly attend meetings of Alcoholics Anonymous for a period of one year. These conditions 

### were satisfied and on March 7, 1975 appellant 

### was allowed towithdraw his guilty plea and the charges 

### weredismissed. On August 13, 1973 the Trustees resolved that a letter of dismissal be sent toappellant based upon his being "convicted" fordrivingwhile under the influenceof intoxicating liquor and driving without a valid driver's license. A 

### letter of dismissal and notification of hearing was dispatched toappellantby the chairman of theBoard of Trustees.The Trustees convened on August 27, 1973, and appellant appeared and submitted tothe Trustees a proposal asking them toconsider a written agreement which would allow him tocontinue teaching. This hearing was recessed until August 29, 1973. When the parties failed toreach an agreement atthe second hearing, theTrusteesmoved that a hearing be held on September 

### 4, 1973. On August 31, 1973, the chairman of the Trustees addressed

a letter toappellant amending the grounds for appellant's dismissal, listing additional basis for dismissal, and offering appellant additional 

### timefor preparation to

### meet the new charges. The Trustees convened on September 

### 4, 1973, and upon motion adopted and ratified the amended and consolidated notice for dismissal. Appellant appeared before the Trustees on September 

### 4, 1973, and objected tothe amended 

### letter of dismissal. Hedemanded that hearing be based upon the initial letterof dismissal dated August 15, 1973. Appellant withdrew from the hearing when the Trustees indicated the hearing would be based upon the charges contained inthe amended 

### letter of dismissal. Subsequent to appellant's withdrawal, the Trustees resolved that appellant

was dismissed, based upon charges contained inthe amended letter of dismissal. Appellant appealed his dismissal tothe County Superintendent of Schools and requested a determination limiting the scope of the hearing. The County Superintendent of Schools ordered the scope of the hearing toinclude those charges 

### set forthinthe amended letter of dismissal and setthe hearing for September 21, 1973. On September 18, 1973, appellant petitioned the district court, Fergus County, for 

### a 

### writof prohibition, 

### writof mandateor other appropriate 

### writrestraining the County Superintendent of Schools from proceeding tohearing on the charges. The districtcourt issued, and subsequently dismissed, an alternative

### writof mandate and prohibition directed tothe County Superintendent of Schools and the Trustees. Appellant petitioned this Court for a 

### writof supervisory control on September 26, 1973, and asked that the district court order dismissing the alternative

### writbe overruled. This Court dismissed the petition, Lindgren v. District Court, 162 Mont. 548, 514 P.2d 767. The County Superintendent of Schools heard appellant's appeal on October 2, 1974, and affirmed the Trustees' decision todismiss appellant. Appellant appealed to the State Superintendent of Public Instructionwho entered a decision holding therewas substantial evidence supporting the findings of the County Superintendent of Schools based upon the amended 

### letter of dismissal. The districtcourt of Lewis and Clark County affirmed the decision of the State Superintendent of Schools and from that finaljudgment Lindgren appeals and presents two issues for review: 1. Did the Board of Trustees of High School District No. 1, Fergus County, dismiss appellant inaccordance with the laws of the State of Montana? 2. Was there substantial evidence on the record to support the finding appellant was incompetent and unfit toteach under his 1973-74 school contract? The firstallegation of error concerns the procedural

manner inwhich appellant was dismissed from his teaching duties. Section 75-6107, R.C.M. 1947, sets forth the applicable law in Montana pertaining to the dismissal of a teacher under contract: "The trustees of any districtmay dismiss a teacher before the expiration of his employmentcontract for immorality, unfitness, incompetence, orviolation of the adopted policies of such trustees. Any teacher who has been dismissed may inwriting within ten (10) days appeal such dismissal tothe county superintendent; following such appeal a hearing shallbe held within ten (10) days. If the county superintendent, after a hearing, determines that the dismissal by the trustees was made without good cause, he shall order the trustees toreinstate such teacher and tocompensate such teacher athis contract amount for the 

### timelostduring the pending of the appeal." Section 75-5930, R.C.M. 1947, provides inpertinent part: "No business shallbe transacted by the trustees of a districtunless 

### it istransacted ata regular meeting or a properly called specialmeeting." See: Wyatt 

### v. School District No. 104, 148 Mont. 83, 417 P.2d

It is appellant's contention the Trustees' actof dis

### missal 

### is legally ineffective. Hereaches thisconclusion by construing theTrustees' initial 

### letter of dismissal incombinationwith the amended and consolidated 

### letter of dismissal 

### as

a single notice todismiss. Appellant argues that section 75- 5930, R.C.M. 1947, requires that the amended letter of dismissal "be transacted ata regular meeting orproperty called special meeting" of the Trustees. Appellant concludes the attempt to discharge him is void since the amended 

### letter of dismissal

was merely adopted and ratified by the Trustees rather than being transacted atthemeeting. Wefind thisargument without 

### merit. The initial letter of dismissal notified appellant he

was dismissed and that his services would not be used during the 1973-74 school year. This initial

### letter based appellant's dismissal on these grounds: 

### " 

## * * * This action is taken because of your conviction on July 16, 1973 for driving while under the influence of intoxicating liquor, third conviction, and driving without a valid driver's license. In addition these facts place you inviolation of section 75-6108, R.C.M. 1947, asamended which requires that 'any teacher under contract with a district shall: conform toand enforce the laws

## * * *."I

### Our initial discussion concerns the basis upon which the trustees determined appellant should be dismissed. In the district court record we find theminutes of the August 13, 1973 Trustees' regularmeeting. In theseminutes appears this subtitle: "LETTEROF 

### DISMISSAL TO BE SENT TEACHER: Trustee Swiftmoved seconded by Trustee Tresch that a letter of dismissal be forwarded to Wesley Lindgren, teacher in Fergus High School,because of a D.W.I. and driving without a valid license and conviction on both counts. Themotion carried.

### " We conclude from this record that onAugust 13, 1973 at a regular meeting of the Trustees, it was resolved that appellant be dismissed from his 1973-74 teaching duties on the basis of appellant's abovementioned violations. Next, we determinewhether the basis for dismissal utilized by the Trustees is legally sufficient for dismissal. Under section 75-6107, R.C.M. 1947, the dismissal of a teacher under contract requires a showing of immorality, unfitness, incompetence,

or violation of the adopted policies of the Trustees. The initial letter of dismissal failed to substantiate any causal relationship between appellant's violations and his performance of teaching duties. This Court does not find, as a matter of law, that violations for driving under the influence of intoxicating liquor and driving without a valid driver's license are tantamount to "immorality,unfitness, incompetence, or violation of the adopted policies of such trustees." Absent such showing, the discharge of appellant amounted to a breach of contract. Hovland v. School Dist. No. 52, 128 Mont. 507, 278 P.2d 211. Respondent Trustees contend appellant's dismissal should be upheld based upon the amended and consolidated letter of dismissal which states: "Since charges were initially brought against Mr. Lindgren, additional information has come

### to the board. For this reason, amended and consolidated notice for dismissal is given. "Thecauses are: 'immorality,unfitness, incompetence,and failure to conform to and enforce the laws

## * * 

## *.' (See sections 75-6107 and 75-6108, Revised Codes of Montana.) These causes grow out of Mr. Lindgren's arrest for DWI and driving without a valid Montana driver's license on April 14, 1973 and his conviction thereupon on July 16, 1973. In addition, the charges stem fromMr. Lindgren's performance as a teacher in his school,particularly as to his poor relationship with students, his lack of willingness to make adequate plan preparation, his failure to accept responsibility in the school,his lack of interest in the students, his failure tomaintain adequate class supervision and discipline,his poor example to students,his failure to convey skillspossessed by him to his studentsas he should,his failure to take proper care of the classroom and the property placed in his charge, and his arrival at school in a disheveled appearance, smelling of alcoholic beverages." Respondents argue the clear and unequivocal ratification of the amended and consolidated letter of dismissal is proper. Furthermore, they contend appellant was not prejudiced by the amended notice of dismissal. Respondents cite the holding of the district court as authority for the proposition that "so long as there is notice and opportunity for hearing the Board

can amend its charges for dismissalprior to hearing as was done here". We do not agree. The additional charges alleged in the amended and consolidated letter of dismissal are derived from information which

was available to the trustees at the time of the drafting of the initial letter of dismissal and at the time the Trustees accepted a new contract of employment for the 1973-74 year on April 30, 1973. This Court has already concluded the initial letter of dismissal did not establish legally adequate grounds for dismissal. To recognize the amended letter of dismissal

as adequate in law would amount to submitting appellant to the burden of establishing the invalidity of chargespropounded

### for the purpose of remedying legally inadequate charges. he 

### Court concludes appellant incurred substantial legal prejudice when required to meet these additional charges. In view of our determination of appellant's first issue, further discussion regarding the sufficiency of the evidence is unnecessary. The judgment of the district court is reversed and the cause remanded for the determination of emoluments due appellant pursuant to statute and case authority4



## -- Justice

oncur: 9



### kbn. Jack Green, sitting in place of Mr. JusticeWesley Castles.