INTHE SUPREME COURT OF THE STATE OF MONTANA No. 14697

BOARD OF TRUSTEES OF GARFIELD COUNTY HIGH SCHOOL, GARFIELD COUNTY, MONTANA, 

### *. > . Relator and Respondent, I I, 2 a v. L. THOMAS EATON, Respondent and Appellant.

ORDER

PER CURIAM: This Court having considered the petition for rehearing filed herein by relator and respondent, IT IS NOW ORDERED: That portion of the petition relating to striking the award of attorney fees to appellant and amending the Opinion inthis respect is granted. The final sentence of the Opinion reading, "Damages willalso include an amount equal to Eaton's attorney fees and costs plus interest from the date of discharge." is hereby ordered deleted from the Opinion. The petition for rehearing isotherwise denied. DATED this /&day of December, 1979. 

# .8,

# %& ,chief Justice

Mr. Justice John C. Sheehy did not participate inthis decision.

### No. 14697 IN THE SUPREME COURT OF THE STATE OF MONTANA 1979

BOARD OF TRUSTEES OF GARFIELD COUNTY HIGHSCHOOL,GARFIELD COUNTY, MONTANA, Relator and Respondent,

L-THOMAS EATON, Respondent and Appellant.
Appeal from: District Court of the First ~udicial ~istrict, Honorable 

### M. James Sorte, Judge presiding. Counsel of Record: For Appellant: Pedersen, Herndon, Harper and Munro, Billings, Montana For Respondent: Smith Law Firm,Helena, Montana Cannon and Gillespie, Helena, Montana



### - Submitted on briefs: August 1, 1979 Decided:

# pleq1

# e 1979 Filed: , -=

### Mr. JusticeGene B. Daly delivered the Opinion of the Court.

his 

### appeal is from a summary judgment in favor of respondents rendered November 21, 1978,by the First Judicial ~istrict Court,County of Lewis and Clark, the Honorable M. James Sorte,presiding. The Board of Trustees of Garfield County High School (Board), respondents herein, voted to terminate the employment of Thomas Eaton, appellant herein, the principal of the high school, on January 11, 1977,effective June 30, 1977. The executive director of the Montana School Board Association informed the Board that because Eaton was not notified of his dismissal in writing, the dismissalwas void. At the same time the Board and Eaton were also informed that the 02 endorsementheld by Eaton on his teaching certificate did not qualify him to be a county high schoolprincipal under section 75-6112, R.C.M. 1947 (nowsection 20-4-401, MCA)

# . At a special meeting of the Board called the next day, Eaton was asked to submithis teacher's certificate for inspection. Eaton did so, and itwas found that he had an 02 endorsement. The Board thereupon acted to terminate Eaton as county high school principal because he did not have an 03 endorsement as required by the statute and therefore could notvalidly hold the position of county high schoolprincipal. On June 16, 1977, the Board informed Eaton, inwriting, he was being immediately dismissed pursuant to section 75-6112,R.C.M. 1947 (nowsection 20-4-401, MCA), because he was not properly certified at the level necessary to be a county high school principal.

### The Board further inquired of the State Superintendent of Public Instructionwhether Eaton was qualified to hold the position as county high school principal. On June 17, 1977, the State Superintendent's office informed the Board that Eaton was qualified as a principal. Eaton appealed from the Board's decision, and on July 21, 1977, a hearing was held before the county superintendent of schools. The county superintendentconcluded that Eaton was qualified to be principal but that his contract
was effectively terminated on June 30, 1977. The county superintendent further held that the Board shouldmake compensation to Eaton for the unused sick leave and unused annual leave for the contractyear ending June 30, 1977. Both parties appealed this decision to the State Superintendent. On June 19, 1978, the State Superintendent found that Eaton had been wrongfully discharged and ordered that he be reinstated. The Board petitioned the District Court of Lewis and Clark County for review of the matter, and both parties moved for summary judgment. The Board's motion was granted
on the basis of the DistrictCourt's finding that Eaton was not qualified as a principal and that the trustees had the power to dismiss him regardless of the unexpired term of his contract. From this summary judgment,Eaton appeals. Two issues face the Court on appeal: 1. Whether the District Court erred in concluding that section 20-4-401,MCA, allowed the Board to summarily dismiss Eaton. 2. Whether the DistrictCourt erred in not invoking the doctrines of waiver and/or estoppel which would bar the Board from discharging Eaton.This appeal turns on the interpretation of section 20- 4-401, MCA. Subsection (1)of that section states inpertinentpart: 

# ".

. .The trusteesof a county high school shall employ and appoint a district superintendent, except thattheymay employ and appoint a holder of a 

### class 3 teacher certificatewith a district superintendent endorsement 

### as the county high school principal inlieuof a district superintendent. 

# .." The District Court found, and appellant admits, thathe didnot have a district superintendent endorsement on his class 03 teacher certificate. The DistrictCourt therefore found that appellant

### wasnot qualified tobe a county high school principal and held thatpursuant to section 20-4- 401(5), MCA, appellant

### was tobe discharged. Section 20-4-401(5), MCA, provides: "At any timethe class 3 teacher certification or the endorsement of the certificate of a districtsuperintendent or a county high school principal thatqualifies such person tohold such position becomes invalid, the trustees of the districtor thejoint board of trustees shall discharge such person 

### as the district superintendent orcounty high school principal regardless of the unexpired 

### termof his contract. The trustees shallnot compensate him under the 

### termsof hiscontract for any 

### services rendered subsequent tothe dateof the invalidationof his teacher certificate." The language of the above statute isclear and unambiguous. Section 20-4-401(1)t MCA, clearly states the qualifications necessary tobe a county high school principal. Section 20-4-401(5), MCA, provides that if the endorsement of the certificatedoes not qualify the person tohold such a position he must be discharged. Appellant's certificatedid not have theproper endorsement; therefore, according tothe statute, the Board would normally be required todischarge him.The factsof this case, however, present a situation not contemplated by the legislature nor dealtwith by case law..A summary of the pertinent facts follows: (1)section 20-4-401, MCA, was firstenacted as section 75-6112, R.C.M. 1947, by section 93, Chapter 5, Laws of Montana (1971), and amended in 1973by Section 1, Chapter 105, Laws of Montana (1973). (2) Eaton was employed under fiveone-year contracts as county high school principal of Garfield County High School ending with the school year 1976-1977. (3)When Eaton was initiallyhired by the Board, he posssessed a class 3 teachers certificate, Level 11, with an 02 endorsement (secondaryprincipal) instead of an 03 endorsement (districtsuperintendent)

# . (4) On January 11, 1977, the Board decided to terminate Eaton's employment when his fifthcontract expired on June 30, 1977. No reasons for termination 

### were given nor were they required by 

### law (section 20-4-401(3), MCA). Eaton had actual knowledge of this decision; however, he was not notified inwriting asrequired by section 20-4- 401(3),MCA. (5) Following itsJanuary 11, 1977, decision, the Board immediately advertised for a new county high school principal and subsequently hired one Robert E. Aumaugher tofill theposition. The qualifications set forth inthe advertisement were identical tothose held by Eaton and, infact, Aumaugher possessed only an 02 endorsement on his certificate. (6) On June 14, 1977, the partieswere informed by the ~~~cutive Director of the Montana School ~oards ~ssociationthat the notice of termination given toEaton was ineffective because it 

### was not inwriting. It was atthis

### time alsofthatthe Board and Eaton were made 

### aware that an 03 endo~sement,not an 02 endorsement, was required by statute tobe a county high school principal. .(7) The Board then called a specialmeeting on June 15, 1977, and asked Eaton toproduce his teaching certificate. Eaton did so, and it

### was found tohave an 02 endorsement, not an 03 endorsement. The Board sent a letter toEaton dated June 16, 1977, stating thatpursuant to section 20-4- 401(5), MCA, Eaton's serviceswere immediately terminated because he did not have an 03 endorsement on his certificate. The Board alsoreevaluated Aumaugher but agreed to

### retain him upon his assurance that he would have the necessary !
.. quglifications as set forth in section 20-2-401(1), MCA, afterhis studies inJuly 1977. (8) It isinteresting tonote that an 03 endorsement
wasEaton's merely for the asking without further study. Eaton, infact, requested thatendorsement, and it was tendered him by the Superintendent of Public Instruction on July 21, 1977. The Board's methodology inthismatter does not conform tothe procedure envisioned by the legislature in section 20-4-401, MCA. It isclear thatwhen the Board's original attempt to terminate Eaton went awry, they sought out the convenience of section 20-4-401(5), MCA. The Board submits that they didnot become aware of this statuteuntil June 14, 1977. This explanation, however, isnot sufficient in lawas the Board has a duty tobe aware of the statutes governing suchmatters.

### The judgment of the District Court is reversed and the
cause is remanded to the District Court with instructions to enter judgment for Thomas Eaton for improper discharge and compute damages in an amount equal to the amount Eaton would have earned inwages and benefits for one year under the terms of his contract at the time of his improper discharge. Damages will also include an amount equal to Eaton's attorney fees and costs plus interest from the date of discharge.

We concur:



### 0 C-ef Justice 

# WQQX

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### Wp:;:;ice Daniel J. Shea concurring in part and dissenting



### I concur in the opinion allowing Thomas Eaton one year's wages and benefits as damages, but 

### I cannot agree that he is entitled, as damages, to recover attorney fees. In the absence of a statute so allowing, or in the absence of court a opinion clearly setting forth new/element of damages to be applied to cases arising under a myriad of circumstances, as they normally do, I 

### cannot agree that attorney fees can be recovered as part of his damages.

Justice

Mr. Justice John C. Sheehy, deeming himself disqualified, did not participate in this decision.