No. 12410 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

FLORENCE SCHWEIGERT, 

Plaintiff and Appellant, 

BOARD OF TRUSTEES OF EVERGREEN SCHOOL 

DISTRICT # 50, KALISPELL, MONTANA, 

Defendants and Respondents. 

Appeal from: District Court of the Eleventh Judicial District, 

Honorable Robert C. Sykes , Judge presiding. 

Counsel of Record : 

For Appellant : 

White, Vadala & Springer, Kalispell, Montana 

David L. Astle argued, Kalispell, Montana 

For Respondents: 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Chadwick Smith, argued, Helena, Montana 

H. James Oleson appeared, County Attorney, Kalispell, 

Montana 

Submitted: September 28, 1973 

Decided : bCf 1 1 ?gn 

Filed : OCT 1 1 1973 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This is an action by a teacher against a school board seeking 

reinstatement of her employment. The district court of Flathead 

County, the Hon. Robert C. Sykes, district judge, granted the 

school board's motion to dismiss the action. Plaintiff appeals 

from the order of dismissal. 

Plaintiff is Florence Schweigert, a teacher who had been 

employed in the Evergreen School near Kalispell in Flathead County, 

Montana, for approximately four years immediately preceding the 

present controversy. Defendant is the Board of Trustees of Evergreen School District #50, which did not rehire her for the 1972- 

1973 school year. 

The facts of the controversy are contained in a written 

stipulation, in the employment contracts attached to the original 

complaint, and in the affidavits attached to the amended complaint. 

Prior to March 14, 1972, the school superintendent, who was also 

the principal of the Evergreen grade school, advised the Board 

that there would be an insufficient number of students to justify 

continuing two special education classes, suggested that one of 

such classes be discontinued, and that one of the two special 

education teachers' contracts not be renewed for the coming school 

year. 

On March 14, 1972, the Board decided this recommendation was 

in the best interests of the school district and unanimously voted 

to discontinue the class of plaintiff Florence Schweigert and not 

renew her contract. Two days later the school superintendent met 

with plaintiff and informed her of the decision of the school board. 

At that time plaintiff indicated she would like to discuss this 

decision with the Board, but the next day plaintiff orally informed 

him that she had changed her mind and did not desire to meet with 

the Board. 
On March 22 the chairman of the school board notified plaintiff by certified letter of the ~oard's decision to discontinue 

her special education class and not to offer her a teaching contract 

for the coming school year. 

According to affidavits attached to the amended complaint, on 

or about May 14 a meeting was held in the home of the chairman of 

the Board to discuss plaintiff's contract. Present at this meeting 

were all members of the school board and a number of parents of 

children who had attended plaintiff's class. After all present 

had given their views, the Board indicated plaintiff would be 

rehired; the chairman of the Board stated that the regular meeting 

would be held the following night and plaintiff would be given a 

contract for the coming year. Plaintiff was notified of the results of this meeting by one of the parents. 

On May 15 the Board held a special meeting to discuss its 

prior action concerning plaintiff, its reasons why the action 

was taken, and so forth. The meeting was open to the public and 

plaintiff was in attendance. At the conclusion of this meeting the 

Board reaffirmed its original decision to discontinue Mrs. Schweigert's special education class and not to offer her a contract for 

the coming school year. Plaintiff informed a member of the Board 

that she did not need this job and that she had other offers outside the school district. 

On May 17 plaintiff served the Board with a petition for a 

formal hearing within ten days to reconsider its termination action 

on these grounds: (1) That the letter of March 23 from the chairman of the school board gave insufficient reasons for termination 

of a tenure teacher, and (2) that the meeting of the Board on May 

15 was insufficient in that it was a closed meeting and plaintiff 

was not enabled to bring forth evidence concerning her characteristics and past achievements as a teacher and the meeting did not 

produce evidence sufficient to terminate the services of a tenure 

teacher. 
Shortly after May 17 the county attorney orally and on June 

13 in writing, advised plaintiff's attorney of denial of plaintiff's 

petition of May 17. 

On June 6 plaintiff's attorney conferred with a representative 

'1 of the State Superintendent of Schools and was given the distinct 

impression" that that office would not enter into this matter and 

that it should be resolved in the district court. 

On June 13 plaintiff requested a formal hearing of the matter 

from the county superintendent of schools and was advised on June 

20 that the county superintendent would take no action in the 

matter because the lapse of time since April 1 precluded her legally 

from doing anything. 

It was further stipulated that plaintiff was a tenure teacher 

with the school district and that the other special education 

teacher whose class was continued was not a certified teacher and 

was without tenure. 

On June 23, 1972, the instant action was filed in the district 

court of Flathead County. The relief sought by plaintiff was a 

court order compelling the Board to reinstate plaintiff and "such 

other relief as this Court deems proper". Subsequently plaintiff 

filed an amended complaint which alleged,additionally, that at the 

school board meeting of May 14 the Board assured the parents it 

would rehire plaintiff, attached were parents' affidavits to that 

effect, and claimed the Board had no jurisdiction thereafter to 

terminate plaintiff. The Board filed a motion to dismiss the amended 

complaint based principally on plaintiff's failure to timely comply 

with her administrative remedies and failure to exhaust the same 

prior to filing a court action. 

The district court granted the ~oard's motion to dismiss on 

the ground that plaintiff failed to comply with her administrative 

remedies within the time allowed by law barring her right to relief 

in the district court. Plaintiff appeals from this order of dismissal. 
We summarize all issues assigned for review into one controlling question, viz: Are plaintiff's rights and remedies in 

the instant action foreclosed by her failure to timely appeal 

from the ~oard's decision not to renew her contract? 

The applicable statute is section 75-6104, R.C.M. 1947, which 

provides : 

"Termination of tenure teacher services. Whenever 

the trustees of any district resolve to terminate 

the services of a tenure teacher under the provisions 

of subsection (1) of section 75-6103, they shall notify 

such teacher in writing before the first day of April 

of such termination. Any tenure teacher who receives 

a notice of termination may request, in writing ten (10) 

days after the receipt of such notice, a written statement declaring clearly and explicitly the specific reason 

or reasons for the termination of his services, and the 

trustees shall supply such statement within ten (10) 

days after the request. Within ten (10) days after the 

tenure teacher receives the statement of reasons for 

termination, he may request in writing a hearing before 

the trustees to reconsider their termination action. 

When a hearing is requested, the trustees shall conduct 

such a hearing and reconsider their termination action 

within ten (10) days after the receipt of the request 

for a hearing. If the trustees affirm their decision to 

terminate the teacher's employment, the tenure teacher 

may appeal their decision to the county superintendent 

and, subsequently, either the teacher or the trustees may 

appeal to the superintendent of public instruction under 

the provision for the appeal of controversies in this 

Title. I I 

The certified letter of March 22 from the chairman of the 

school board to plaintiff was legally sufficient as a notice of 

termination of the services of a tenure teacher pursuant to the 

foregoing statute. Eastman v. School District No. 1, 120 Mont. 63, 

180 P.2d 472. The statute on its face does not require the notice 

to contain a statement of the appeal procedure. The certified 

letter of March 22 contained "a written statanent declaring clearly 

and explicitly the specific reason or reasons for the termination 

of [her] services" as required by statute, viz: "This action 

was deemed necessary because the drop in enrollment of this class 

will not merit employing a teacher for this group." 

If plaintiff wished further specifics, for example why she as 

a tenure teacher was not employed in preference to the other noncertified, nontenured teacher to teach the latter's special education 
class for the younger students, the statutory procedure of a 

request in writing within ten days and a statement of reasons by 

the school board within ten days thereafter was available. No 

demand by plaintiff in writing for a hearing before the trustees 

was made until May 17, some forty-five days after notification of 

termination. As the statute requires written demand for hearing 

within ten days of notification, her right to a hearing under the 

statute had expired. 

The meeting of May 14 at the home of the chairman of the 

school board had no legal effect. Day v. School District No. 21, 

98 Mont. 207, 38 P.2d 595; State ex rel. Howard v. Ireland, 114 

Mont. 488, 138 P.2d 569. The school board meeting of May 15 

reaffirming the ~oard's original decision to terminate plaintiff's 

employment could not revive the expired rights of plaintiff to a 

hearing and reconsideration or start the statutory time limitation 

running anew, See rationale in State v. Wanamaker, 47 Wash.2d 794, 

289 P.2d 697; Robe1 v. Highline Public Schools District No. 401, 

65 Wash.2d 477, 398 P.2d 1. 

Having failed to pursue her statutory administrative remedies 

within the time allowed by law, plaintiff's right to contest the 

termination of her employment as a tenured teacher was at an end. 

The statutory time limitations are mandatory to provide for prompt 

resolution of teacher employment controversies in the public interest 

as well as in the respective interests of the principals involved. 

The judgment of the district court is affirmed. 

Justice 
/ / chief Justice 

Hon. R.D. ~c~hilli~s, District 

Judge, sitting for Justice John 

Conway Harrison.