No. 87-510
INTHE SUPREME COURT OF THE STATEOFMONTANA
1988

TRUSTEESOF LINCOLN COUNTY SCHOOL DISTRICTNO. 13,EUREKA,MONTANA Respondent and Appellant,

CARL R. HOLDEN

## ,JR.

## , Appellant and Respondent

APPEAL FROM: District Court of the Fourth Judicial District In and for the County ofMissoula The Honorable Leif B. Erickson, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant: Susan Loehn, County Attorney, Libby, Montana Richard P. Bartos, Office ofPublic Instruction, Helena, Montana
For Respondent:
Robert S. Keller; Keller and German,Kalispell,Montana

Submitted on Briefs: March 18, 1988 Decided: M~Y 31 1988

ClerkMr. Justice Fred J. Weber delivered the Opinionof the Court.

Mr. Holden1s teaching contract with the Appellant (School District) was terminated. He appealed administratively. Following administrative review, the District Court for the Fourth Judicial District, Missoula County, ordered the School District to pay Mr. Holden the salary due under his contract of employment. The School District appeals. We affirm. The issues are: 1. Did the District Court err in finding that the County Superintendent

### 's findings of fact and conclusions of lawwere not clearly erroheous? 2. Was there sufficient evidence to support the determination of the County Superintendent that the Board of Trusteesdid not have good cause to dismissMr. Holden? Mr. Holden was employed by the School District, in Eureka, Montana, beginning in October 1983. In his first year, he taughtmusic, chorus,and band for grades 3 through 12. Mr. Holden's formal evaluation,completed in April 1984,
was marked satisfactory in all areas except rapport with students. In the 1984-85 school year, Mr. Holden1scontract was renewed and grades 1 and 2were added to his teaching load. On October 2, 1984, Mr. Holden called a girl a "slob" in class because she was not paying attention and was slumped down in her chair. The elementary school principal and the superintendent met with Mr. Holden regarding this incident. In a letter of reprimand dated October 3, 1984, the superintendent informed Mr. Holden that another such incident of abusewould be grounds for dismissal. Five days later, Mr. Holden made the comment, "move over, Goodyear," to a child or group standing in front of atape machine. The children reported the incident to the school administrators,as a comment directed to one child who
was "heavy built." The superintendent and the elementary principal met again with Mr. Holden and gave him the option of resigning or being suspended until ahearing could be held
on the charges againsthim. He alsowas informed thathe had the right to be present at the hearing and to have counsel present. He did not attend the hearing, but submitted a letter to be read into the record. After hearing the evidence, the Board of Trustees voted to dismiss Mr. Holden. Mr. Holden appealed to the LincolnCounty Superintendent of Schools (County Superintendent), before whom a second hearing was held, pursuant to 20-4-207(2), MCA (1983):
Any teacher who has been dismissed may in writingwithin 10days appeal suchdismissal to the county superintendent. Following such appeal a hearing shall be held within 10 days. If the county superintendent,after a hearing, determines that the dismissalby the trusteeswasmade without good cause, he shall order the trustees to reinstate such teacher and to compensate such teacher athis contractamount 

### for the time lost during the pending of the appeal.
The County Superintendent concluded that the School District had failed to substantiate good cause for termination and to
ensure Mr. Holden's due process rights. She ordered the School District to pay Mr. Holden the money to which he was entitled under his 1984-85 contract. The School District appealed to the State Superintendent of Public Instruction, who reversed the County Superintendentand affirmed the Board of Trustees' original decision. Then Mr. Holden appealed to District Court, which reversed the decision of the State Superintendent and ordered the School District to pay Mr. Holdenhis salary due under the 1984-85 contract. The School District appealed thatdecision to this Court.

### Did the District Court err in finding that the County Superintendent's findingsof fact and conclusionsof lawwere not clearly erroneous? The School District raises three separate arguments under this issue. It first argues that the County Superintendent was clearly in error when she ordered the School District to pay Mr. Holden the sums due to him under his 1984-85 contract. The County Superintendentmade her decision in January 1985, 

### and the School District asserts that she had no jurisdiction to award any judgment for contract amounts due beyond thatdate. Mr. Holden does not dispute that the County Superintendent erred in awarding him his wages for the entire year. The District Court, too, concluded that the County Superintendent exceeded her authority. We order this award stricken from the County Superintendent's decision. However, the District Court pointed out that by the time it considered this matter, the school year had expired, so that the award of the full contract amount was appropriate. The District Court properly ordered that these monies be paid to Mr. Holden asdamages. The SchoolDistrictnext argues that the County Superintendent improperly declined to make fact findings on an alleged incident in October 1983, despite the existence of evidence as to that event. In that incident, Mr. Holden apparently had said something to the third grade class which distressed them. Mr. Holden's personnel file contains no written evidenceof this incident. TheCounty Superintendent stated: Exactlywhatwas said,towhom it was said,and the followup discussion with theprincipal arevaguely and inconsistently presented in the testimony.The SchoolBoard correctly points out thatMr. Holdenwas not given notice of the above incident as a reason forhis termination. As a result,the incidentcould notproperly be used
as a reason for his dismissal. See Bd. of Trustees, Etc. v. Super. of Pub. Inst. (1977), 171 Mont. 323, 327, 557 ~.2d 1048, 1050-51. The County Superintendent properly noted in her conclusions that shewas limited to considerationof the evidence supporting the specific charges given as a reason forMr. Holden's dismissal. We hold that itwas not error to omitadditional findings on the incident. Third, the School District argues that the County Superintendent improperly discussed the issue of progressive discipline. This discussion appearsunder the heading "other due process considerations" in the County Superintendent's order and was not necessary to the determination of whether the School District had good cause for terminating Mr. Holden's contract. We hold that the discussion is not essential to the good cause determination by the County Superintendent and does not constitute clear error. I!: Was there sufficient evidence to support the determination of the County Superintendent that the Board of Trustees did nothave good cause todismissMr. Holden? Under § 20-4-207, MCA, a school district may dismiss a teacher before his contract has expired "for immorality, unfitness, incompetence, or violation of the adopted policies of such trustees." The County Superintendentconcluded that:
Only 2 incidents of inappropriate language were deemea worthy of written documentation and clear directives for Mr. Holden. This does not seem to be a preponderance of evidence,nor sufficient cause for dismissal. The ability to maintain control and/or motivate students seems clearly tome to be amatter ofcompetence 

# . . . Although sarcastic and cutting language is totally inappropriate in the classroom, it was not proven that Mr. Holden's language impaired his ability to "discharge the duties of his position."
Under § 20-4-207, MCA, neither the State Superintendent of Public Instruction nor the District Court may substitute its judgment for that of the County Superintendenton issues of fact. Frazer School Dist. No. 2 v. Flynn (Mont. 1987), 732 P.2d 409, 410, 44 St.Rep. 248, 250. The transcriptused on appeal is from the hearing before the County Superintendent. Sections 20-3-107(2), MCA, and 20-3-210(3)

## , MCA. Further, findings of the reviewing agency cannot be included

as facts when they are not part of the County Superintendent's findings. Frazer, 732 P.2d at 411. The decision of the State Superintendent of Public Instruction includes a number of findingswhich were not part of the County Superintendent

### 's findings

# . After reviewing the findings of the County Superintendent,we conclude that they are supportedby substantial evidence in the record. TheDistrict Court stated that the County Superintendent had the discretion to decide that the two incidents were not
so serious as to merit dismissal of Mr. Holden. We agree. Without condoning the remarks Mr. Holden made to his students,we hold that itwas not error for the County Superintendent to conclude that the two incidents were not good
cause forMr. Holden's dismissal. Affirmed.

# >LA 4.29 Justices