No. 12410 INTHE 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:

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Filed: 

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### 1973Mr. Justice Frank I. Haswell delivered the Opinion of the Court.
This isan actionby a teacher against a school board seeking reinstatement of her employment. The district court of Flathead County, the Hon. Robert C. Sykes, districtjudge, granted the school board's motion to dismiss the action. Plaintiff appeals from the order of dismissal. Plaintiff isFlorence Schweigert, a teacherwho had been employed in the Evergreen School near Kalispell inFlathead 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, inthe employment contracts attached to the original complaint, and inthe affidavits attached to the amended complaint. Prior toMarch 14, 1972, the school superintendent, who was also the principal of the Evergreen grade school, advised the Board that therewould be an insufficient number of students tojustify continuing two special education classes, suggested that one of such classesbe discontinued, and that one of the two special education teachers' contractsnot be renewed for the coming school year.On March 14, 1972, the Board decided this recommendation was in thebest interests of the school district and unanimously voted todiscontinue 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 liketodiscuss this decisionwith the Board, but the next day plaintiff orally informed him that she had changed her mind and didnot desire tomeet with the Board.On March 22 the chairman of the school board notified plaintiffby 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 toaffidavits attached to the amended complaint, on
or about May 14a meeting was held in the home of the chairman of the Board todiscuss plaintiff's contract. Present atthis meeting
were allmembers of the school board and a number of parents of childrenwho had attended plaintiff's class. After allpresent 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 specialmeeting todiscuss its prior action concerning plaintiff, itsreasons why the action
was taken, and so forth. The meeting was open to the public and plaintiff was inattendance. At the conclusion of this meeting the Board reaffirmed its original decision todiscontinue Mrs. Schweigert's special education class and not to offerher a contract for the coming school year. Plaintiff informed a member of the Board that she didnot need thisjob and that she had other offers outside the school district. On May 17 plaintiff served the Board with a petition for a formal hearingwithin ten days toreconsider itstermination 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 15was insufficient in that it was a closed meeting and plaintiff
was not enabled tobring 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 inwriting, advised plaintiff's attorney of denial ofplaintiff's petition of May 17. 

### On June 

### 6plaintiff's attorney conferredwith 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 shouldbe resolved in the district court. On June 13 plaintiff requested a formalhearing of the matter from the county superintendent of schools and was advised on June 20 that the county superintendentwould take no action in the matter because the lapse of time sinceApril 1 precluded her legally from doing anything. Itwas further stipulated that plaintiffwas a tenure teacher with the school district and that the other special education teacherwhose classwas continuedwas not a certified teacher and
was without tenure. 

### On June 23, 1972, the instant actionwas 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 schoolboard meeting of May 14the Board assured the parents it would rehire plaintiff, attachedwere 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 complaintbased 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'smotion to dismiss on the ground that plaintiff failed to complywith her administrative remedies within the time allowed by lawbarring 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 shallnotify such teacher in writing before the first day of April of such termination. Any tenure teacherwho receives a notice of terminationmay request, inwriting ten (10) days after the receipt of suchnotice, a written statement declaring clearlyand explicitly the specific reason or reasons for the termination of his services,and the trustees shall supply such statementwithin ten (10) days after the request. Within ten (10) days after the tenure teacher receives the statement of reasons for termination,he may request inwriting 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 ofpublic instruction under the provision for the appeal of controversies in this Title.II The certified letter ofMarch 22 from the chairman of the schoolboard 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 DistrictNo. 1, 120Mont. 

### 63, 180 P.2d 472. The statute on its face does not require thenotice to contain a statement of the appeal procedure. The certified letter ofMarch 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." Ifplaintiff wished further specifics, for examplewhy she as a tenure teacherwas not employed in preference to the othernoncertified,nontenured teacher to teach the latter's special educationclass for the younger students, the statutoryprocedure of a request inwriting within ten days and a statement of reasons by the schoolboard within ten days thereafterwas available. No demand by plaintiff in writing for a hearing before the trustees
was made until May 17, some forty-five days afternotification of termination. As the statute requires written demand for hearing within ten days ofnotification, her right to a hearing under the statutehad expired. Themeeting of May 14at the home of the chairman of the schoolboard had no legal effect. Day v. School District No. 21, 98Mont. 207, 38 P.2d 595; State ex rel. Howard v. Ireland, 114 Mont. 488, 138 P.2d 569. The schoolboard meeting of May 15 reaffirming the ~oard'soriginal decision to terminateplaintiff'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, 47Wash.2d 794, 289 P.2d 697;Robe1 v. Highline Public Schools DistrictNo. 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 ofher employment as a tenured teacherwas at an end. The statutory time limitationsaremandatory to provide for prompt resolutionof 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

### / / chiefJustice

Hon. R.D. ~c~hilli~s, District Judge, sitting for Justice John Conway Harrison.