IN THE SUPREPIE COURT OF THE STATEOF MONTANA

CHARLES D. RIPPEY, Plaintiff and Appellant,

BOARD OF TRUSTEESOF FLATHEAD VALLEY COI~~IUNITY COLLEGE

### , Defendantand Respondent.

APPEAL FROM: District Court of the Eleventh JudicialDistrict, Inand for the County of Flathead, The IIonorableJamesM. Salansky, Judgepresiding.

COUNSEL OF RECORD: ForAppellant: Hilley & Loring;Emilie Loring,Great Falls,Montana

For Respondent: JonathanB. Smith,Deputy CountyAttorney, Ralispell, Montana

Submitted on Briefs: March 30, 1984 Decided: J-me8, 1984

-- ClerkMr. Justice John ConwayHarrison delivered the Opinion of the Court.This appeal originated in the District Court of the Eleventh Judicial District of the State of Montana, in and for the County of Flathead. Appellant brought this action for payment of accumulated unused sick leave at the termination of his employment. The trial court granted the College'smotion to dismiss,and this appeal followed. Appellant was an instructor at the Flathead Valley Community College in Kalispell-,Montana. At the end of the 1982-1983 academic year,his employmentwas terminated by the College aspart of a retrenchmentplan. Upon termination,he requested payment for the amount of unused sick leave he had accumulated to that point. The College refused the request, reasoning that appellantwas a "schoolteacher" under section 2-18-601(2),MCA, and,as such,was exempted from the State's sick leaveplan. Appellant filed a complaint in the District Court seeking payment, and the College moved to dismiss the complaint for the same reasons it had originally denied appellant's request. The District Court dismissed the complaint on the grounds forwarded 

### by the College, and this appeal foll-ows 

# . The applicable Montana code sections appear in Chapter 18 of Title 2, entitled "State Employee Classification and Benefits." Part 6 of the chapter is titled "LeaveTime" and section 2-18-618,MCA, sets forth the provisions for entitlement to sick leave. Section 2-18-618, MCA, allows State employees compensation for accumulated sick leave. However, section 2-18-601(2), MCA,defines a State employee to exclude "schoolteachers" for this purpose. The issue thus becomes whether community college faculty members are"schoolteachers"and therefore excluded from the State's sick leaveplan under section 2-18-601(2), MCA. To decide this issue it becomes necessary to look to the history of the community college in this State. Under our statutes, the community college legal status is a hybrid. A community college is neither a high school nor an admitted part of the university system; however, it is answerable to the Board of Regents. In addition, and perhaps more important, it is partially financedby State funds. This Court in the case of BurlingtonNorthern, Inc. v. Flathead County (1978), 176 Mont. 9, 575 P.2d 912, reviewed the legal history of the community college in a case involving the financing of teachers1retirement. There we noted: "Prior to 1971, community colleges operated under and were governed by the same statutes as were high school districts. When firstorganized,communitycolleges, or junior colleges as they were then called, were under the supervisionof the state superintendent of public instruction. 1939 Mont.Laws, Ch. 158, S7. In 1965, the legislature placed them under the supervision of the state board of education. 1365Mont. Laws,Ch. 274,S2. "In 1971, the legislature recodified all la.ws relating to school districts. 1971 Mont.Laws, Ch. 5, SS 1-496. Under this recodification,the stateboard of education initially was to retain supervision over community colleges. 1971Mont.Laws, Ch. 5, 450 (codified. at section 75-8103, R.C.M. 1947, amended 1971). Also, community colleges were to be budgeted a.n.dfinanced under high school district budgeting and financing provisions. 1971 Mont.Laws, Ch. 5, S 468 (codified at section 75-8121, R.C.M. 1947, repealed 1971). Later in the same session, however, the legislature passed abill introduced in response to the 1969 Senate Education Committee

## 's d.esire to spend State Foundation Program moneys exclusively for thepublic school systems through grade twelve and to separately finance community college districts. Senate Committee on Education, Hearings on S.B. 56,A Report to the 1971 MontanaLegislature (Financing Montana Community Colleges) at p. 3, Forty-second Session.

(January19, 1971.) "As a result the 1971 legislature made two changes in its earlier recodification of school laws. First, it placed community colleges under the supervision of theboard of regents, 1971Mont.Laws, Ch. 406, 

### 5 1 (codified at section 75-8103, R.C.M. 1947). Second, it repealed section 75-8121 (whichprovided for financing community college districts under high school budgeting and financing provisions) and replaced it with new system for financing community college districts separately from the School Foundation Program. 1971 Mont.Laws, Ch. 401,S5 1-8 (codifiedat sections 75-8127 to 75-8133, R.C.M. 1947.) If 176 Mont. at 11-12, 575 P.2d at 913-914. As noted above, the legislature has put community colleges under the supervision of the Board of Regents, section 20-15-103, MCA; the course of instruction, tuition and fees must be approved by the Board of Regents, section 20-15-105, MCA; part of the funding comes from the State general appropriations act, section 20-15-310, MCA; and the operating budget must be submitted t.o the Board of Regents for approval, section 20-15-312,MCA. All of this indicates the community college educational staff members are not in a - strict legal sense "schoolteachers" since they are ultimately answerable to the Board of Regents. Counsel for the respondent argues that three cases of this Court apply, and their holdings deny appellant sick leave. Those cases are: Finley v. School District No. 1 (1915), 51 Mont. 411, 1.53 P. 1010; Teamsters v. Cascade County School DistrictNo. 1 (19731,162 Mont. 277, 511 P.2d 339; and Bitney v. School DistrictNo. 44 (1975), 167 Mont. 129, 535 P.2d 1273. A reading of those cases shows they are not applicable to the facts here. Finley, supra,dealt with whether or not a school district could contract to pay agrade school teacher on a twelve-month basis. Teamsters, supra, involvedwhether or not custodianswere to be entitled

as teachers to vacation benefits enumerated in section 59-1.001, R.C.M. 1947. Bitney, supra, involved a school superintendent and.whether or not he was allowed sick leave. We found he had a contract that "provided regular full. sick leave allowed other teachers in the school system." Therefore, these cases are of no assistance in interpreting the statute as it relates to a community college facultymember. Looking to our statutory provision for interpretation, section 1-2-106,MCA states: "Words and phrases used in the statutes ofMontana are construed according to the context and the approved usage of the language, but technicalwords and phrases and such others as have acquired a peculiar a.nda.ppropriatemeaning in law or are defined in chapter 1, part 2, as amended,are tobe construed according to such peculiar and appropriate meaning or definition." Section 20-1-101(20),MCA, states: 

### "'Teacher' means any person, except a district superintendent, who holds a valid Montana teacher certificate that has been issued by the superintendent of public instruction under the provisions of this title and thepolicies adopted by the board of public education and who is employed by a district as amember of its instructional, supervisory, or administrative staff. This definition of a teacher shall also include any person for whom an emergency authorization of employment of such person has been issued under the provisions of 20-4-111." We find that the plain and ordinary meaning of "schoolteachers" does not encompasshigher education fa.culty,including a community college faculty member. This is especially true in light of the above-noted relationship between the Board of Regents and Montana's community colleges. Community collegeeducational staff members are State "employees" for purposes of entitlement topayment for accumulated sick leave. The judgment of the District Court is reversed and remanded.

We concur: 

# h-R& 

# w-4, Chief Justice