No. 13323 

IN THE 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, SUPERINTENDENT OF 

PUBLIC INSTRUCTION, 

Respondents and Respondents. 

Appeal from: District Court of the First Judicial District, 

Honorable Peter Meloy , Judge presiding . Counsel of Record: 

For Appellant : 

McKittrick and Duffy, Great Falls, Montana 

D. Patrick McKittrick 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 22 1976 

Filed: DEC 22 1976 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from a judgment of the district court, 

Lewis and Clark County. The judgment affirmed a decision of 

the Supreintendent of Public Instruction, upholding the decision of the County Superintendent of Schools, Fergus County, 

in the matter of the dismissal of Wesley A. Lindgren by the 

Board of Trustees of School District No. 1, Fergus County. 

Appellant was employed as an industrial arts and math 

teacher at Fergus County High School. He had had teaching 

contracts with Fergus County School District No. 1 for fourteen 

consecutive years and was a tenure teacher. On April 2, 1973, 

the Board of Trustees of School District No. 1, hereinafter 

referred to as the 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 driving while under the influence of intoxicating liquor (third offense) and driving without a valid 

driver's license. He plead guilty to these charges. Imposition 

of sentence was deferred for one year upon condition that appellant complete the Alcohol Rehabilitation and Treatment Program 

at the state hospital at Galen 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 to withdraw his guilty plea and the charges were dismissed. 

On August 13, 1973 the Trustees resolved that a letter 

of dismissal be sent to appellant based upon his being "convicted" for driving while under the influence of intoxicating 

liquor and driving without a valid driver's license. A letter 

of dismissal and notification of hearing was dispatched to appellant by the chairman of the Board of Trustees. 
The Trustees convened on August 27, 1973, and appellant 

appeared and submitted to the Trustees a proposal asking them 

to consider a written agreement which would allow him to continue teaching. This hearing was recessed until August 29, 

1973. When the parties failed to reach an agreement at the 

second hearing, the Trustees moved that a hearing be held on 

September 4, 1973. 

On August 31, 1973, the chairman of the Trustees addressed 

a letter to appellant amending the grounds for appellant's 

dismissal, listing additional basis for dismissal, and offering appellant additional time for 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 to the amended letter of dismissal. He demanded that hearing be based upon the initial letter of dismissal 

dated August 15, 1973. Appellant withdrew from the hearing when 

the Trustees indicated the hearing would be based upon the charges 

contained in the amended letter of dismissal. Subsequent to 

appellant's withdrawal, the Trustees resolved that appellant 

was dismissed, based upon charges contained in the amended letter 

of dismissal. 

Appellant appealed his dismissal to the 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 to include those charges set 

forth in the amended letter of dismissal and set the hearing for 

September 21, 1973. 

On September 18, 1973, appellant petitioned the district 

court, Fergus County, for a writ of prohibition, writ of mandate 
or other appropriate writ restraining the County Superintendent 

of Schools from proceeding to hearing on the charges. The 

district court issued, and subsequently dismissed, an alternative writ of mandate and prohibition directed to the County 

Superintendent of Schools and the Trustees. 

Appellant petitioned this Court for a writ of supervisory control on September 26, 1973, and asked that the district 

court order dismissing the alternative writ be 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 

to dismiss appellant. 

Appellant appealed to the State Superintendent of Public 

Instruction who entered a decision holding there was substantial 

evidence supporting the findings of the County Superintendent 

of Schools based upon the amended letter of dismissal. The 

district court of Lewis and Clark County affirmed the decision 

of the State Superintendent of Schools and from that final judgment Lindgren appeals and presents two issues for review: 

1. Did the Board of Trustees of High School District 

No. 1, Fergus County, dismiss appellant in accordance 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 to teach 

under his 1973-74 school contract? 

The first allegation of error concerns the procedural 

manner in which 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 district may dismiss a 

teacher before the expiration of his employment 
contract for immorality, unfitness, incompetence, 

or violation of the adopted policies of such 

trustees. Any teacher who has been dismissed 

may in writing within ten (10) days appeal such 

dismissal to the county superintendent; following 

such appeal a hearing shall be 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 to reinstate such teacher and 

to compensate such teacher at his contract amount 

for the time lost during the pending of the appeal." 

Section 75-5930, R.C.M. 1947, provides in pertinent part: 

"No business shall be transacted by the trustees 

of a district unless it is transacted at a regular 

meeting or a properly called special meeting." 

See: Wyatt v. School District No. 104, 148 Mont. 83, 417 P.2d 

It is appellant's contention the Trustees' act of dismissal is legally ineffective. He reaches this conclusion by 

construing the Trustees' initial letter of dismissal in combination with the amended and consolidated letter of dismissal as 

a single notice to dismiss. Appellant argues that section 75- 

5930, R.C.M. 1947, requires that the amended letter of dismissal 

"be transacted at a regular meeting or property 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 at the meeting. We find this argument 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 in violation of section 75-6108, 

R.C.M. 1947, as amended which requires that 

'any teacher under contract with a district 

shall: conform to and 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 the minutes of the August 

13, 1973 Trustees' regular meeting. In these minutes appears 

this subtitle: 

"LETTER OF DISMISSAL TO BE SENT TEACHER: 

Trustee Swift moved 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. The motion 

carried. " 

We conclude from this record that on August 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 above mentioned violations. 

Next, we determine whether 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. 

"The causes 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 from Mr. 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 to maintain 

adequate class supervision and discipline, his 

poor example to students, his failure to convey 

skills possessed by him to his students as 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 dismissal prior 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 charges propounded 
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. Justice Wesley 

Castles.