NO. 91-048 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

ROWLAND THROSSELL, 

## MAY30 

### 1991 petitioner and Appellant,

-vsBOARD OF TRUSTEES OF GALLATIN COUNTY SCHOOL DISTRICT NO. 7, BOZEMAN, MONTANA, Defendant and Respondent.

APPEAL FROM: District Court of theEighteenth Judicial District, In and for the County of Gallatin, The Honorable Larry W. Moran, Judgepresiding.

COUNSEL OF RECORD: For Appellant: Gregory 0. Morgan, Bozeman,Montana. For Respondent: Donald E. White; White & Seel, Bozeman, Montana.

submitted on briefs : April 18, 1991 Filed: Decided: May 30, 1991

ClerkJustice Fred J. Weber delivered the Opinion of the Court.



### A retired 

### school administrator 

### brought this action claiming thathewas entitled tobenefits under the Bozeman Public Schoolst Voluntary Career Option Plan, offering retirement benefits identical to those afforded teachers. The District Court for the Eighteenth Judicial District, Gallatin County, denied the administrator such benefits and he now appeals. We affirm. The sole issue on appeal iswhether the District Court erred in holding that Mr. Throssell, as an administrator, was not entitled to Option Plan benefits under his contract? School DistrictNo. 7 of Gallatin County hired 

### Mr. Throssell in 1976 as Senior High Vice Principal. His contractprovided that he receive fringe benefits the same as Ifallother benefits equal to those offered to other certified employees of the District 

## . 

# .

.unless otherwise addressed in this contractn. 

### In 1983,Mr. Throsself gavenotice of his intent to retire at the end of the 1984 academic year. In April 1984, the School District adopted the Bozeman Public SchooltsVoluntary Career Option Plan (Option Plan). The Option Plan speaks of I1out-ofand service. The controversyhere involves lldistrict-creditedlr service. The Option Plan provides in part: For the purpose of this program, the term teacher shall be as defined in the Collective ~argainingAgreement between SchoolDist. #7 and the

### Bozeman Education System.



# . . . The amounts of payment involved are strictly dependent upon the number of years of district-credited service.

(Emphasisadded).The Collective Bargaining Agreement defines "teacherm as follows: Unless otherwise indicated the terms "teacherttor I1teachers,"when used in this agreement, refer[s] to 

# . *.. all employees who are certified 

### in Class 1, 2, 4, or 5 as provided in Section 20-4-106, MCA, whose positions require certification 

### and all other employees who are required to be licensed to perform educational services of a professional nature but shall exclude all supervisory employees, e.g.! the superintendent, assistant superintendent, prxncipals and assistant principals, 

# . 

# . . (Emphasisadded), Prior to retiring, Mr. Throssell applied for benefits under the Option Plan. The School District trustees denied his application for benefits under the Option Plan upon two grounds:

(1)

### As an administrator in the School Districthe

### was specifically excluded from thebenefits of theOption Plan;

### and (2)hewould not be entitled to compensation under the Option Plan as he had only eight years of in-district credit with the School District. Thirteen years of district-credited service are needed to qualify for the Option Plan. Mr. Throssefl appealed the case to the Gallatin County Superintendent of Schools. The County Superintendent found that theOption Planwould be a benefit included inMr. Throsselll s last contract in 1983 but that it was necessary to have at least thirteen years of district-credited service for a teacher to qualify under the Option Plan. She further found that the provisions of the schoolls collective bargaining agreementallowing a maximum number of seven years of district-credited service applies 

### only to "teacherstt 

### hired during the term of the collectivebargaining agreement dated July 1, 1983, through June 30, 1984. She concluded that Mr. Throssell had eight years of in-district service but that neither his 1976 nor 

### his 1983 contracts contained any provision granting him credit for any out-of-district service. Thus,his claim 

### was again denied. Mr. Throssell appealed to the State Superintendent of Public Instruction (StateSuperintendent)who held thatMr. Throssell was entitled to benefits 

## if he were qualified. The State Superintendent affirmed the County Superintendent's decision. Subsequently,Mr. Throssell appealed the decision to the District Court pursuant to 5 2-4-702, MCA. 

### The District Court found that the County Superintendent and the State Superintendent committed an error of law by considering only part of the definition of the term "teacheraf as used in the Option Plan, and failing to consider specific language in the definition: [The Option Plan] 

# . . . shall exclude all supervisory employees, e.g., the Superintendent, Assistant Superintendent, Principals and Assistant Principals, 

# .

.

# . Thus, the District Court held that as an Assistant Principal,Mr. Throssell was not eligible to receiveOption Planbenefits because he was specifically excluded by the language of the Option Plan. Mr. Throssell appeals the District Court's decision. 

### Did the District Court err in holding that Mr. Throssell, as 

### an administrator, was not entitled to Option Plan benefits under his contract? 

### Two factors must be met before Mr. Throssell can receivebenefits. First, he must be an employee "eligible'l under the Option Plan to receive such benefits. Second, if he is eligible, he must meet a minimum requirement 

### of thirteen years of districtcredited service so that he may actually receive the benefits. The District Court concluded that Mr. Throssell was not eligible for coverage. We disagree. Mr. Throsselllscontract provided that he receive the following fringe benefits (inpart): A. Full family health, dental and vision Insurance. All other benefits equal to those offered to other certified employees of the District which includes

### but isnot limited toMaternity Leave,Emergency Leave,Leave for Civic Duties, Personal Leave and Leaves of Absence, 

### unless otherwise addressed 

### in this contract. (Emphasis added)

# . Nowhere does the contract otherwise provide that Mr. Throssell should not receive benefits equal to those offered to other certified employees. The District Court's reference to the Collective Bargaining Agreement's definition of teacher was correct. However, itmust also considerMr. Throsselltsindividual contract which allows Itallother equal benefitstt. We therefore

reverse the ~istrict Court's conclusion that 

### Mr. Throssell is not entitled to benefits under the Career Option Plan. Mr. Throsselltsrecord 

### of service card showed 

### the number "11" 

### in the 190utM column. Throssell contends that the School District credited him with eleven years of out-of-district service on the permanent record card and thus, he is entitled to benefits under the Option Plan. The 

### State Superintendent addressed 

### that 

### argument as follows: Themaximum number ofyears out-of-district service a "new teachert1 could be credited is seven years. 

### A

### decisionon the actual number ofyears of out of district servicecredited to a new teacher ismade by theDistrict at the time of hire. The new teacher's placement on the salary matrix requires the District to decide how many years of out-of-district service itwill credit to a new teacher. The term "district-credited" requires action on the part of the District. The ~istrict may credit a new teacher with zero through seven years of out-ofdistrict service. As the County Superintendent concluded, Mr. Throssell was not a "newteacher" when he entered intohis final contract in 1983. 

### The 1983 contract does not contain a provision granting credit to Mr. Throssell for any out-of-district service. Therefore, districtcredited service for new teachers under the 1983

## - 1984 Collective Bargaining Agreement is not a benefit towhich Mr. Throssell would be entitled under his 1983 contract because he was not a "new teacher" in 1983. 

### For this reason, the County Superintendent and the StateSuperintendent concluded thatMr. Throsselldid not meet the requirement for a minimum of thirteen years of districtcredited service to qualify for the Option Plan. The scope of review of administrative decisions is somewhat limited. See 5 2- 

### 4-704(2), MCA. 

### Our function as an appellate court reviewing an administrative decision is not tosubstituteour judgment for that of the County [or State] Superintendent but rather to review the whole record to determine if the administrative findings are clearly erroneous or if the County Superintendent's [or State Superintendent's] conclusions of law constitute an abuse of discretion. Harrisv. Cascade County School Dist. No. 6

### and F (1990), 241Mont. 274, 277, 786 P.2d 1164, 1166. After reviewing the record, we conclude that the County and State Superintendents' findings are not clearly erroneous nor were the conclusions of law an abuse ofdiscretion,and affirm their conclusion thatMr. Throssell did not meet the thirteen year minimum requirement. While we affirm the final holding of the District Court that Mr. Throssell will not receive Option Plan benefits, we disagree with the basis for its decision. As previously stated, Mr. Throssell's contract specifically provided that he receive "all other equal benefitstt equal to those offered to other certified employees of the District. Thus,we hold that in this case,under Mr. Throsselltscontract he was eligible to receive Option Plan benefits 

### if he satisfied the thirteen year minimum requirement of district-credited service. We agree that the record supports the conclusions of the Superintendents that he did not. We affirm the District Court's denial of benefits to the plaintiff.



### We Concur:

Chief Justice

### May30, 1993 

### CERTfFICATEOFSERVICE 

### Iherebycertifythat thefollowing orderwas sentby United Statesmail,prepaid, tothe following

### named: Gregory 0.

### Morgan Attorney atLaw 

### P.O.Box 1530 Bozeman,

### MT 59715 Donald

## E.White White & See1 1800W.Koch,Ste.9 Bozeman,MT 59715 

### ED

### SMITH CLERK

### OFTHESUPREMECOURT STATE

### OFMONTANA