No. 89-620 IN THE SUPREME COURT OF THE STATE OF MONTANA

DANIEL DEBAR,THOMAS V. HORNUNG and JOHN S. KOCHEL, Plaintiffs and Appellants,

TRUSTEES, YELLOWSTONE COUNTY ELEMENTARY SCHOOLDISTRICT NO. 2 and HIGH SCHOOL DISTRICT NO. 2, Defendants and Respondents.

APPEAL FROM: DistrictCourt of theThirteenth Judicial District, In and for the County of Yellowstone, The Honorable William J. Speare, Judgepresiding.

COUNSEL OF RECORD: For Appellant: Emilie Loring; Hilley & Loring; Missoula, Montana For Respondent: Laurence Martln; Felt & Martin; Billings, Montana

Filed: Submitted on Briefs: July 13, 1990 ~ecided:September 5, 1990 ,Ffl--+ 

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,.,, ! ?. Q,# f ":nj,"< C,. $( ClerkJustice Fred J. Weber delivered the Opinion of the Court.

Three school teachersbrought thisaction for monetary relief after being suspended without pay for 2 1/2 days. The District Court for the Thirteenth Judicial District, Yellowstone County, granted summary judgment in favor of the defendants. Plaintiffs appeal. We affirm. The sole issue for our review is whether the District Court erred in granting summary judgment? The facts in this case are simple and uncontested. Plaintiffs, three teachers (teachers), were seendrinking alcoholic beverages on the school bus on their way home from a mandatory staff-only field triptoCuster Battlefield. Thedrinking incident

was reported to the building principal. The teachers admitted to drinking on the bus and the matter was referred to the School District's central personnel administrators. The administrators interviewed the teachers individually in separate meetings. At the end of each meeting, each teacher was informed that he was suspendedpending furthernotice. The next day, the teachers were notified that theywere being suspended for 2 1/2 days without pay. School Board members were not involved in the decision. After filing a grievance which was not arbitrated, and a petition in DistrictCourt for awrit ofmandate which was denied, the teachers filed the present action as a wage claim, seeking wages for the 2 1/2 days salary thathad been lost, plus statutory penalties and attorney fees under the Wage Protection Act. 2Concluding that the School District was immune under 5 2-9-111, MCA; that S 20-4-207,MCA,doesnot apply totemporary suspensions; and that no wage claim existed; the District Court granted the School District's motion for summary judgment and dismissed the case on itsmerits. From that decision, the teachers appeal. Did the District Court err in granting summary judgment? The teachers maintain that as teachers under contract with the School District, theymay not be suspended without pay in the absence of action by the school board and compliance with the statutory requirementsof 5 20-4-207,MCA. In so contending, they argue that they were entitled to written notice and a hearing before they could be suspended. The School District contends that because it is immuneunder 5 2-9-111, MCA, this Court need not consider the merits of the

case. It further maintains that 5 20-4-207,MCA, is inapplicable to short-term suspensions. Iturges that the statute only applies todismissals,and a "suspensionuis not a ndismissaltt. The School District claimsthat thepower to suspend isnot a statutorypower, but rather it is derived from the power to manage. The question ofwhether a temporary suspension is governed by 5 20-4-207, MCA, is a question of first impression in Montana. Section 20-4-207,MCA, provides (inpart) as follows: Dismissal of teacher under contract. (1) 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. (2) (a) The following persons may recommend the dismissal of a teacher for cause under subsection (1):(i) a district superintendent; (ii) in a district without a district superintendent, a principal;

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... (b) A person listed in subsection (2) (a) who recommends dismissal of a teacher shall give notice of the recommendation in writing to each trustee of the district and to the teacher. (c) The notice must state the specific instances of behavior or acts that led to the recommendation for dismissal. (3) (a)

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# . .thetrustees shallnotify theteacher of his right to a hearing before the trustees either by certified letter or by personal notification for which a signed receiptmust be returned. The District Court differentiated between lldismissalsll and I1temporary suspensions~.Itconcludedthat while the above statute explicitly deals with permanent dismissals, there is nothing to suggest any legislative intent that it apply to temporary suspensions. Therefore, the lower court held that "it is not a violation of that statute for a short-termdisciplinary suspension tobe imposedby school district central administrativepersonnel, without Board action." We agree with the conclusion of the ~istrict Court. We hold that 2 1/2 day disciplinary suspensions imposed by administrative personnel do not constitute dismissals which come under the provisions of 5 20-4-207,MCA. The District Court further concluded that temporary suspensions are issues covered by the collective bargaining agreement which should be pursued through the contractual grievance/arbitration process provided in that agreement. The District Court then concluded that issues surrounding short-term disciplinary suspensions are grievable issuesunder the collective bargaining agreement, and therefore were not proper forconsideration by the District Court. We agree with that conclusion. Wepoint out that theteachers filed thisclaimunder theWage Protection Act, 5 39-3-201, MCA, 

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### m, claiming a statutory penalty and attorney fees. In Julian 

### v. Montana State Univ.

(1987), 229 Mont. 362, 747 P.2d 196, this Court ruled that where

no labor isperformed,no claim forwages existedunder theMontana Wage ProtectionAct. In the present case, the plaintiffs did not perform any work during the 2 1/2 days of suspension. As a result the District Court concluded that the claim for compensation did not qualify as a wage claim. We affirm that conclusion. We do not find it necessary to discuss the immunity aspect of the case. We hold that the District Court correctly granted summary judgment for the defendants.

We Concur: I